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UNIVERSITY 
h       OF  CALIFORNIA 
LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


LAW    LIBRARY 

OF 
LOS  ANGELES  COUNTY 


r:r- 


LAWU 


OF 

LOS  ANGELES  COUNTY 


A    TREATISE 


THE   AMERICAN   LAW 


REAL     PROPERTY 


BY 

EMORY  WASHBURX,  LL.D. 

H  I 

BUSSEY   PROFESSOR   OF   LAW   IN    HARVARD    UNIVERSITY;    AUTHOR   OF  A   TREATISE 
ON   THE   AMERICAN    LAW    OF   EASEMENTS    AND    SERVITUDES 


SIXTH  EDITION 

BY 

JOHN   WURTS,   M.A.,   LL.B. 

PROFESSOR   OF   THE   LAW   OF   REAL  PROPERTY   IN   THE   YALE   LAW   SCHOOL 
AUTHOR   OF   INDEX-DIGEST   OF   THE    FLORIDA    REPORTS 


VOLUME   II 


BOSTON 

LITTLE,    BROWN,    AND   COMPANY 

1902 


/ 


Entered  according  to  Act  of  Congress,  in  the  year  1860,  by 

EMOKY     WASHBURN, 

In  the  Clerk's  Office  of  the  District  Court  for  the  District  of  Massachusetts. 
Entered  according  to  Act  of  Congress,  in  the  year  1864,  by 

EMORY    WASHBURN, 

In  the  Clerk's  Office  of  the  District  Coart  for  the  District  of  Massachusetts. 
Entered  according  to  Act  of  Congress,  in  the  year  1868,  by 

EMORY   WASHBURN, 

In  the  Clerk's  Office  of  the  District  Court  for  the  District  of  Massachusetts. 


Entered  according  to  Act  of  Congress,  in  the  year  1876,  by 

EMORY    WASHBURN, 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 

Copyright,    1886, 
By  Little,  Brown,  and  Company. 

Copyright,  1902, 
By  Little,  Brown,  and  Company. 


University   Press  : 
John  Wilson  and  Son,  Cambridge,  U.S.A. 


CONTENTS. 


CHAPTER 

XL. 

XLT. 

XLII. 

XLIII. 

XLIV. 

XLV. 

XLVI. 

XLVII. 

XLVIIL 

XLIX. 

L. 

LI. 

LII. 

LIII. 

LIV. 

LV. 

LVL 

LVIL 

LVIIL 
LIX. 

LX. 

LXL 
LXIL 


PAGE 

Estates  upon  Condition 1 

Mortgages  —  Nature  and  Form  of  Mortgages      .  30 

Mortgages  with  Powers  of  Sale 59 

Trust  Mortgages 72 

Equitable  Mortgages    .          76 

Mortgages  —  Of  the  INIortgagee's  Interest  ...  88 

Mortgages  —  Of  the  Mortgagor's  Interest  .     .     .  139 

Mortgages  —  Merger  of  Interest 172 

Mortgages  —  Of  the  Personal  relieving  the  Real 

Estate 177 

Mortgages  —  Of  Contribution  to  redeem      .     .     .  180 

Mortgages  —  Of  Accounting  by  the  Mortgagee    .  200 

Mortgages  —  Of  Foreclosure     . 216 

Incorporeal  Hereditaments 246 

Incorporeal  Hereditaments  —  Franchises     <,     .     .  265 

Incorporeal  Hereditaments  —  Easements    .     .     .  272 

Uses  prior  to  the  Statute  of  Uses 362 

Uses  after  the  Statute  of  Uses 378 

Trusts  —  Their  Nature,  Duration,  Qualities,  and 

Incidents 413 

Trusts  —  Classification  of  Trusts 420 

Trusts  —  How     created,     declared,    and     trans- 
ferred        463 

Trusts  —  Rights,  Powers,  and  Duties  of  Parties 

to  Trusts 479 

Trusts  under  the  Law  of  New  York 490 

Estates  in  Reversion 495 


(f1  m 


IV 


CONTENTS. 


CHAPTER  PAGE 

LXIIl.     Keiiiaiiulers  —  Nature    and    Characteristics   of 

Reniainders 504 

LXIV.     Vested  Remainders 514 

LXV.     Cross-remainders " .     .  523 

LXVI.     Contingent  Remainders' 525 

LXVII.     Contingent  Remainders  —  The  vesting  of  Con- 
tingent Remainders 543 

LXVIII.     Contingent   Remainders  —  The   Particular    Es- 
tate    548 

LXIX.     Contingent  Remainders  —  How  defeated       .     .  552 
LXX.     Contingent     Remainders  —  Rule    in    Shelley's 

Case 558 

LXXI.     Contingent  Uses 568 

LXXII.     Springing  Uses 574 

LXXIII.     Shifting  Uses 578 

LXXIV.     Powers  —  Nature  and  Classification  of  Powers  591 

LXXV.     Powers  —  Suspension  or  Destruction  of  Powers  601 
LXXVI.     Powers  —  Application  of  Powers  in  American 

and  English  Law 606 

LXXVII.     Powers  —  How  Powers  may  be  created     .     .     .  609 
LXXVIII.     Powers  —  By  whom  and    how  a  Power  may  be 

executed 612 

LXXIX.     Powers  —  Excessive  or  Defective  Execution  of 

Powers 630 

LXXX.     Powers  —  How  far  Equity  aids  the  Execution 

of  Powers 636 

LXXXI.     Executory  Devises  —  Nature  and  Classification 

of  Executory  Devises 639 

LXXXII.     Executory   Devises  —  Interests   of    Executory 

Devisees 660 

LXXXIII.     Executor}-  Devises  of  Chattel  Interests    .     .     .  670 
LXXXIV.     Accumulations  and  the  Rule  against  Perpetui- 
ties    675 


LAW    OF   REAL   PROPERTY. 


CHAPTER  XL. 

ESTATES   UPON    CONDITION. 

§  935.  Condition  as  a  quality  of  estates. 

936.  Testamentary  conditions  and  trusts. 

937.  Various  kinds  of  condition. 

938.  Terms  implying  a  condition. 

939.  Examples. 

■"  940.  Conditions  reserved  only  to  grantor  and  heirs. 

941.  When  precedent  or  subsequent. 

'  942.  Conditions  subsequent,  strict  construction. 

'943.  Unlawful  and  impossible  conditions  subsequent. 

■'  944.  Valid  restrictive  conditions. 

945.  Conditions  in  restraint  of  marriage. 

946.  Unlawful  and  impossible, conditions  precedent. 

947.  Illustrations. 

948.  Devise  —  Time  for  performance. 

949.  Conveyance  —  Time  for  performance. 

950.  Implied  conditions. 

951.  Who  may  enforce,  who  perform.  » 

952.  Illustrations. 

953.  Entry  for  condition  broken. 

954.  Who  may  enter  for  condition  broken. 

955.  Eight  of  grantor's  devisee  to  enter. 
\,956.  Reserving  right  of  entry. 

957.  When  actual  entry  necessary  to  enforce  condition. 

958.  Intention  accompanying  entry. 

959.  Conditions  enforced  regardless  of  damage. 

960.  When  breach  of  condition  excused. 

961.  Waiver. 

962.  Waiver,  continued. 

963.  Equitable  relief  against  forfeiture. 

964.  Breaches  against  which  equity  will  not  relieve. 

965.  Equitable  relief,  recapitulation. 

966.  Condition  not  affected  by  change  of  ownership. 

967.  Quantity  of  estate  not  affected  by  condition. 

968.  Reversionary  nature  of  right  to  re-enter. 

969.  Perpetuities. 

970.  Conditions  and  conditional  limitations  differentiated. 
II.  — 1 


2  ESTATES   UPON   CONDITION. 

§  971.     Conditional  limitation,  how  expressed, 

972.  No  remainder  alter  a  fee-simple. 

973.  Conditional  limitations  and  perpetuities. 

§  935.  Condition  as  a  Quality  of  Estates.  —  Estates  maj  be 
affected  by  some  condition  upon  or  by  which  they  may  com- 
mence, be  enlarged,  or  defeated.  Thus,  an  estate  in  fee  or  for 
life,  for  instance,  may  be  qualified  in  this  way  ;  and  wlien  treat- 
ing of  this  subject,  it  is  only  necessary  to  keep  in  mind  the  dis- 
tinction between  an  estate  in  respect  to  its  quantity  or  duration, 
and  its  qualities.^  An  estate  upon  condition  is  one  which  may 
be  created,  enlarged,  or  defeated,  by  the  happening  or  not  hap- 
pening of  some  contingent  event.^  A  condition  is  a  qualification 
or  restriction  annexed  to  a  conveyance,  and  so  united  with  it  in 
the  deed  as  to  qualify  or  restrain  it.^  It  cannot,  however,  be 
created  by  parol  if  the  deed  is  absolute  in  its  terms.*  And  the 
word  "  conditioned  "  in  a  deed  may  have  the  effect  of  the  reser- 
vation of  an  easement  in  the  granted  premises,  as  where  A 
granted  land  to  B  conditioned  that  no  building  other  than  the 
one  described  should  be  erected  on  the  premises,  it  was  held 
not  to  create  an  estate  upon  condition  nor  a  covenant,  but  to 
limit  the  uses  which  might  be  made  of  the  land.  And  as  the 
grantor  owned  adjacent  lands  to  the  granted  premises,  which 
were  to  be  affected  by  the  uses  made  of  these,  it  was  held  that 
the  restriction  barred  the  grantee  and  all  persons  claiming  un- 
der him.^  And  where  the  deed,  though  in  usual  form,  recited 
diat  it  was  understood  by  the  parties  that  the  premises  were  not 
to  be  used  for  any  other  than  certain  purposes  expressed,  as, 
for  example,  "a  d^pot  square,"  it  was  held  to  be  a  covenant, 
and  not  a  condition.^  But  where  there  is  only  a  covenant  or  a 
revocation  of  an  easement  and  not  a  condition,  it  will  require 
words  of  inheritance  to  enable  it  to  enure  to  bind  others  than 
the  immediate  parties  thereto.'^ 

1  Co.  Lit.  201  a. 

2  Co.  Lit.  201  a ;  2  Flint.  Real  Prop.  225. 

3  Labaree  v.  Carleton,  53  Me.  211. 

*  Marshall,  etc.  School  v.  Iowa,  etc.  School,  28  Iowa,  360. 

6  Fuller  V.  Arms,  45  Vt.  400.  So  Ayling  v.  Kramer,  133  Mass.  12  ;  Kennedy 
V.  Owen,  136  Mass.  199  ;  Skinner  v.  Shepherd,  130  Mass.  ISO.  But  where  the 
grantor's  adjoining  land  was  not  referred  to,  there  was  no  easement.     Ibid. 

6  Thornton  v.  Trammell,  39  Ga.  202. 

'  Skinner  v.  Shepherd,  130  Mass.  180  ;  and  a  restriction  against  a  "  building  " 


ESTATES   UPON    CONDITION.  3 

§  936.  Testamentary  Conditions  and  Trusts.  —  It  is  sometimes 
difficult  to  determine  in  respect  to  estates  created  by  devise, 
whether  they  are  estates  upon  condition  or  trusts.  If  it  be  the 
first,  the  effect  of  a  breach  of  the  condition  is  to  defeat  the 
estate,  and  the  heirs  may  come  in  and  take  it  with  all  improve- 
ments made  upon  it,  and  discharged  of  all  intermediate  charges 
and  incumbrances.  But  if  the  limitations  in  the  devise  are  to 
be  taken  as  directions  to  trustees,  explaining  the  terms  upon 
which  the  devise  is  made,  it  will  be  taken  to  be  a  trust,  which 
those  who  take  the  estate  are  bound  to  perform,  and  in  case  of 
a  breach,  a  court  of  equity  will  interpose  and  enforce  perform- 
ance, and,  by  thus  preserving  the  estate,  carry  out  the  charity 
or  bounty  of  the  testator.  And  what  the  old  law  treated  as  a 
devise  upon  condition,  courts  would  now,  very  generally,  con- 
strue a  devise  in  fee  upon  trust.  In  this  way,  instead  of  the 
heir  taking  advantage  of  the  condition,  the  cestui  que  trust 
could  compel  an  observance  of  the  trust.  And  the  question  of 
intent  would  be  inquired  into  as  gathered  from  the  whole  de- 
vise, although  the  testator  may  have  used  the  word  "  proviso," 
ordinarily  a  word  of  condition,  in  connection  with  his  devise.-^ 

§  937.  Various  Kinds  of  Condition.  —  The  condition  may  be 
express  or  implied,  and  it  may  be  precedent  or  subsequent.  An 
express  condition,  otherwise  called  a  condition  in  deed,  is  one 
declared  in  terms  in  the  deed  or  instrument  by  which  the  estate 
is  created.  An  implied  condition,  or  a  condition  in  law,  is  one 
which  the  law  implies,  either  from  its  being  always  understood 
to  be  annexed  to  certain  estates,  or  as  annexed  to  estates  held 
under  certain  circumstances.  Conditions  precedent  are,  as  the 
term  implies,  such  as  must  happen  before  the  estate  dependent 
upon  them  can  arise  or  be  enlarged,  while  conditions  subsequent 
are  such  as,  when  they  do  happen,  defeat  an  estate  already 
vested. 2 

§  938.  Terms  implying  a  Condition.  —  Among  the  forms  of 
expression  which  imply  a  condition  in  a  grant,  the  writers  give 

is  not  broken  by  the  construction  of  a  brick  fence.     Nowell  i'.  Bost.  Acad.  N. 
Dame,  id.  209. 

1  Stanly  v.  Colt,  5  Wall.  119,  165  ;  1  Sugd.  Powers  (7th  Lond.  ed.),  123  ;  Sohier 
V.  Trin.  Ch.,  109  Mass.  1  ;  Episc.  City  Miss.  v.  Appleton,  117  Mass.  326. 

2  Co.  Lit.  201  a  ;  2  Flint.  Real  Prop.  227,  228 ;  Vanhorne  v.  Dorrance,  3  Dall. 
317. 


4  ESTATES   UPON   CONDITION. 

the  following  :  "  on  condition  "  — "  provided  always  "  —  "  if  it 
shall  so  happen  "  —  or  "  so  that  he  the  grantee  pay,  etc.,  within 
a  specified  time ; "  and  grants  made  upon  any  of  these  terms 
vest  a  conditional  estate  in  the  grantee.  And  it  is  said  other 
words  make  a  condition,  if  there  be  added  a  conclusion  with  a 
clause  of  re-entry,  or  without  such  clause,  if  they  declare  that, 
if  tlie  feoffee  does  or  does  not  do  such  an  act,  his  estate  shall 
cease  or  be  void.^  If  a  covenant  be  followed  by  a  clause  of 
forfeiture,  and  it  is  broken,  it  will  be  construed  to  be  a  condi- 
tion.^ But  courts  always  construe  clauses  in  deeds  as  cove- 
nants rather  than  conditions,  if  they  can  reasonably  do  so. 
Where  the  condition  was  that  if  the  grantee  failed  to  do  a 
certain  thing  he  should  pay  the  grantor  so  many  dollars ; 
and  he  broke  the  condition  by  failing  to  do  the  required  act, 
but  tendered  the  money,  it  was  held  to  be  a  condition  subse- 
quent which  the  grantee  had  so  far  performed,  that  the 
grantor's  right  to  enter  for  a  breach  was  defeated.^  What  will 
or  will  not  constitute  a  condition  in  a  deed  is  often  a  matter  of 
nice  construction  by  courts,  and  belongs  rather  to  another  de- 
partment of  the  law  than  that  relating  to  the  nature  and  inci- 
dents of  estates  upon  condition.  Words,  moreover,  often  create 
a  condition  in  a  will  which  would  not  if  made  in  a  deed,  as 
where  in  a  will  an  intention  is  expressed  in  devising  the  land, 
that  the  devisee  should  or  should  not  do  certain  things  in  re- 
spect to  it,  it  may  be  construed  as  creating  a  conditional  estate 
to  him.  But  it  is  said,  "  if  one  makes  a  feoffment  in  fee  "  ea 
intentione,  ad  effectum,  etc.,  that  the  feoffor  shall  do  or  not  do 
such  an  act,  these  words  do  not  make  the  estate  conditional, 
but  it  is  absolute  notwithstanding.  And  yet  where  the  grant  is 
to  a  public  or  charitable  use  and  is  expressed  to  be  for  a  specific 
or  limited  purpose,  the  land  cannot  be  appropriated  to  any 
other.  If  it  is,  the  grantor  retains  sufficient  interest  in  the 
subject-matter  of  the  grant  to  apply  to  the  court  of  chancery 
to  restrain  such  diversion.*     The  grant  of  a  lot  of  land  to  set  a 

1  Lit.  §§  328,  329,  330  ;  Wheeler  v.  Walker,  2  Conn.  201  ;  Com.  Dig.  Condi- 
tion, A.  2.  See  also  2  Wood,  Conv.  (Powell's  ed.)  505,  512  et  seq.  ;  Langley  v. 
Chapin,  134  Mass.  82. 

2  Moore  v.  Pitts,  53  N.  Y.  85. 

8  Board,  etc.  v.  Trustees,  etc.,  63  111.  204. 
*  Warren  v.  The  Mayor,  etc.,  22  Iowa,  351. 


ESTATES   UPON    CONDITION.  5 

meeting-house  thereon  does  not  imply  a  condition.^  And  "  an 
estate  upon  condition  cannot  be  created  by  deed,  except  where 
the  terms  of  the  grant  will  admit  of  no  other  reasonable  inter- 
pretation." Therefore,  reciting  in  the  deed  that  it  is  in  consid- 
eration of  a  certain  sum,  and  that  the  grantee  is  to  do  certain 
things,  is  not  an  estate  upon  condition,  not  being  in  terms  upon 
condition,  nor  containing  a  clause  of  re-entry  or  forfeiture.'^ 
And  yet  these  words  may  create  a  condition  if  a  right  of  re- 
entry is  reserved  in  favor  of  the  grantor  in  case  of  failure  to 
carry  out  the  intention  thus  expressed.^ 

§939.  Examples.  —  An  instance  of  a  condition  precedent -^ 
would  be  a  grant  to  A  upon  his  marriage.  So  a  lease  to  B 
for  ten  years,  and  if  he  pay  the  lessor  £100  by  or  before  a 
certain  time,  that  he  shall  have  the  land  to  him  and  his 
heirs.  In  the  one  case  the  deed  takes  effect  to  create,  in  the 
other  to  enlarge,  the  estate,  when,  and  not  until,  the  pre- 
scribed event  shall  have  happened.*  So  where  A  granted 
land  to  B,  reserving  the  pine  timber  thereon  if  he  get  it  off 
by  a  certain  time.  Such  parts  of  it  as  he  did  not  get  off  by 
that  time  remained  the  property  of  the  grantor.^  An  instance 
of  a  condition  subsequent  would  be  a  grant  to  A  and  his  heirs, 'r'T' 
tenants  of  the  manor  of  Dale,  or  to  B  so  long  as  she  should  \  V 
remain  a  widow.  The  estates  in  these  cases  vest  subject  to 
be  divested  in  the  one  case  upon  the  grantee's  ceasing  to  be 
tenants  of  Dale,  and  in  the  other  upon  the  marriage  of  the 
grantee.^  So  a  deed  to  one  in  which  the  grantor  reserves  to 
himself  a  rent,  with  a  right  to  enter  and  defeat  the  estate  if 
the  rent  shall  be  in  arrear."  A  condition  annexed  to  a  con- 
veyance in  fee  that  the  grantee  shall  pay  the  grantor  or  his 

1  Packard  v.  Ames,  16  Gray,  327. 

2  Ayer  i'.  Emery,  14  Allen,  67,  70  ;  Sumner  v.  Darnell,  128  Ind.  38  ;  s.  c 
27  N.  E.  Rep.  162  ;  Ruggles  v.  Clare,  45  Kan.  662  ;  s.  c.  26  Pac.  Rep.  25. 

8  2  Wood,  Conv.  (Powell's  ed.)  513,  514  ;  Shep.  Touch.  123  ;  Rawson  v.  Uxbridge. 
7  Allen,  125  ;  Co.  Lit.  204  a;  Cowper  v.  Andrews,  Hob.  40  a  ;  Dyer,  138;  Doct. 
&  Stud.  Dial.  2,  c.  34  ;  Warren  r.  Patterson,  56  111.  Ill,  119  ;  Watters  v.  Breden, 
70  Penn.  St.  235  ;  Faith  v.  Bowles,  86  Md.  13  ;  s.  c.  37  Atl.  Rep.  711 ;  s.  c.  63  Am. 
St.  Rep.  489. 

*  2  Flint.  Real  Prop.  228  ;  Lit.  §  350. 

5  Monroe  v.  Bowen,  26  Mich.  523. 

«  2  Flint.  Real  Prop.  229. 

'  Lit.  §  325  ;  Watters  v.  Breden,  supra. 


6  ESTATES    UPON    CONDITION. 

heirs  an  annual  rent,  and  in  default  the  grantor  may  enter, 
is  a  good  condition.^  In  Rawson  v.  Uxbridge,^  the  devise  was 
of  land  to  a  town  for  a  burying-place  forever,  and  was  held 
not  to  be  a  condition  at  common  law.  But  in  Indiana,  a 
grant  of  a  lot  of  land  was  made  to  a  town  "for  the  purpose  of 
erecting  a  tan-yard  on  it,"  and  was  held  to  constitute  a  condi- 
tion subsequent,  and  the  vendee  having  erected  a  tan-yard 
upon  the  premises,  and  maintained  it  for  twenty-four  years, 
the  title  was  not  defeated,  though  he  then  discontinued  that 
use  of  the  estate.^  An  executed  estate  will  not  be  defeated 
by  the  grantee's  failure  to  perform  an  agreement.  In  order 
that  the  condition,  in  such  a  case,  should  defeat  the  estate, 
the  grant  must  be  in  its  nature  executory.*  But  a  grant  upon 
condition  that  the  land  should  be  used  for  a  specific  purpose, 
—  a  school  and  schoolhouse,  for  instance,  —  to  be  forfeited  if 
used  for  any  other  purpose,  upon  the  grantor  paying  the  ap- 
praised value  of  the  buildings,  was  held  to  be  a  grant  upon 
condition  at  common  law,  which  the  grantor  or  his  heirs 
could  only  take  advantage  of  by  making  entry  after  the 
breach.^  If  the  condition  requires  the  grantee  to  use  the 
granted  premises  for  a  special  purpose,  and  he  do  so,  there 
is  nothing  to  prevent  his  using  it  for  any  other  purpose  not 
inconsistent  with  this.^ 

§  940.  Conditions  reserved  only  to  Grantor  and  Heirs.  —  The 
doctrine  of  estates  upon  condition  seems  to  have  been  origi- 
nally derived  from  the  feudal  law,  and  grew  out  of  the  condi- 
tions upon  which  fiefs  were  granted.  If  the  tenant  neglected 
to  pay  or  perform  his  service,  the  lord  might  resume  his  fief. 
It  is  upon  this  ground  that  conditions  are  held  to  be  reserved 
to  the  grantor  and  his  heirs  only,  and  he  and  they  alone  can 

1  Van  Eensselaer  v.  Ball,  19  N.  Y.  100  ;  Littleton,  §  325. 

2  7  Allen,  125. 

3  Hunt  V.  Beeson,  18  Ind.  380. 

*  Laberee  v.  Caileton,  53  Me,  211.  For  conveyances  in  consideration  of  and 
conditioned  on  the  support  of  the  grantor,  see  Stamper  i'.  Stamper,  121  N.  C.  251  ; 
s.  c.  28   S.  E.  Rep.  20 ;  Powers  v.  Powers,  —  Ky.  ^ — - ;  s.  c.  39  S.  W.  Eep.  825  ; 

Cash  V.  Cash,  ~  Ky. ;  s.  c.  41   S.  W.  Rep.  579  ;  Gilchrist  v.  Foxen,  95  Wis. 

428  ;  s.  c.  70  N.  W.  Rej..  585  ;  Dunklee  v.  Hooper,  69  Vt.  65 ;  s.  c  37  Atl.  Rep. 
225 ;  Shum  v.  Claghorn,  69  Vt.  45  ;  s.  c.  37  Atl.  Rep.  2a6. 

s  Warner  v.  Bennett,  31  Conn.  468. 

6  McKelway  v.  Seymour,  49  N.  J.  321. 


ESTATES   UPON   CONDITION.  7 

avail  of  the  right  of  resuming  the  estate  for  a  breach.  And 
the  grantor's  remedy  for  such  a  breach  is  by  a  resumption  of 
the  estate  granted.^ 

§  941.  When  Precedent  or  Subsequent.  —  But  it  is  not  al- 
ways easy  to  determine  whether  the  condition  created  by  the 
words  of  a  devise  or  conveyance  is  precedent  or  subsequent. 
The  construction  must  depend  upon  the  intention  of  the  par- 
tics,  as  gathered  from  the  instrument  and  the  existing  facts, 
since  no  technical  words  are  necessary  to  determine  the  ques- 
tion. In  the  case  cited  below,  the  court  state  as  a  rule,  that 
"if  the  act  or  condition  required  do  not  necessarily  precede 
the  vesting  of  the  estate,  but  may  accompany  or  follow  it, 
and  if  the  act  may  as  well  be  done  after  as  before  the  vesting 
of  the  estate,  or  if  from  the  nature  of  the  act  to  be  performed, 
and  the  time  required  for  its  performance,  it  is  evidently 
the  intention  of  the  parties  that  the  estate  shall  vest,  and 
the  grantee  perform  the  act  after  taking  possession,  then  the 
condition  is  subsequent. "^  *  In  construing  doubtful  condi- 
tions the  courts  prefer  conditions  subsequent  to  conditions 
precedent.  2 

§  942.  Conditions  Subsequent,  Strict  Construction.  —  But 
conditions  subsequent,  especially  when  relied  on  to  work  a 

*  Note.  —  Among  the  numerous  cases  of  conditional  devises  and  grants,  A 
devised  to  B  and  C  a  certain  estate,  "  they  jointly  and  severally  paying  to  E  F  " 
so  much  money  "within  ten  years  after  testator's  decease,"  held  an  estate  defeasi- 
ble upon  failure  to  pay  according  to  its  terms.  Wheeler  v.  Walker,  2  Conn.  196. 
So  a  grant  to  a  religious  society  upon  condition  that  it  should  be  held  for  the 
support  of  a  minister  preaching  in  a  certain  church,  standing  upon  a  certain  lot 
of  land.  The  proprietors  took  down  the  church,  and  erected  it  upon  another  lot. 
This  was  held  to  work  a  forfeiture  of  the  estate,  by  the  condition  subsequent  being 
broken.  Austin  v.  Cambridgeport  Parish,  21  Pick.  215.  So  where  the  grant  was 
upon  condition  that  the  public  buildings  of  a  county  shall  be  fixed  upon  a  i)art  of 
it,  and  they  were  fixed  upon  another  lot.  Police  Jury  v.  Reeves,  18  Martin,  221. 
See  Stuyvesant  v.  The  Mayor,  11  Paige,  414,  427.  So  a  devise  of  land  for  the 
purpose  of  building  a  schoolhouse,  provided  it  is  built  within  such  a  distance  of 
such  an  object,  was  held  a  condition  subsequent.  Hayden  v.  Stoughton,  5  Pick. 
528. 

1  Butler's  note  84  to  Co.  Lit.  201  a. 

2  Underbill  v.  Saratoga  R.  R.,  20  Barb.  455.  See  also  Barruso  v.  Madau, 
2  Johns.  145 ;  Finlay  v.  King,  3  Pet.  346  ;  Rogan  v.  Walker,  1  Wis.  527. 

3  Congregational  Church  Bldg.  Soc.  v.  Everett,  85  Md.  79  ;  s.  c.  36  Atl.  Rep. 
654  ;  s.  c.  60  Am.  St.  Rep.  308. 


8  ESTATES   UPON    CONDITION. 

forfeiture,  must  be  created  by  express  terms  or  clear  impli- 
cation, and  are  construed  strictly.^  Thus  where  A  conveyed 
land  to  B  on  condition  that  he  should  not  convey  the  same, 
except  by  lease,  prior  to  1861.  Before  that  time  B  leased  it 
for  ninety-nine  years,  and  gave  the  lessee  a  covenant  to  con- 
vey the  fee  after  that  date.  It  was  held  not  to  be  such  a 
conveyance  of  the  estate  as  to  be  a  breach  of  the  condition. ^ 
Upon  these  principles,  where  a  condition  applies  in  terms  to 
the  grantee  or  lessee  without  mention  of  heirs,  executors,  or 
assigns,  the  condition  cannot  be  broken  after  the  death  of  the 
grantee  or  lessee.  If  heirs  and  executors  are  named,  but  not 
assigns,  it  will  not  be  broken  by  any  act  of  an  assignee. 
Accordingly,  where  the  grant  of  an  estate  was  upon  condi- 
tion that  the  grantee  should  maintain  a  fence,  without  nam- 
ing his  heirs,  executors,  or  assigns,  it  was  held  that  the 
neglect  of  his  heirs,  after  his  death,  to  do  it,  did  not  work  a 
forfeiture.^ 

§  943.  Unlawful  and  Impossible  Conditions  Subsequent.  — 
Conditions  may  be  impossible,  unlawful,  or  incompatible  with 
the  nature  of  the  estate  to  which  they  are  annexed,  and  their 
effect  is  then  often  materially  different  whether  they  are  in 
their  nature  precedent  or  subsequent.  A  condition  subse- 
quent, if  it  has  any  effect,  defeats  an  estate  already  vested, 
but  if  such  condition  is  impossible  or  unlawful  at  the  time  of 
creating  the  estate,  or  becomes  impossible  by  the  act  of  the 
feoffor  or  the  act  of  God,  it  leaves  the  estate  an  absolute  and 
unconditional  one,  since  it  is  the  condition  itself  that  is  or 
becomes  void.  Thus,  if  an  estate  be  made  to  A  B  and  his 
heirs,  but  upon  the  condition  that  unless  he  shall  go  to  Rome 
in  twenty-four  hours,  or  marry  J  S  by  such  a  day,  and  she 

1  Gadbeny  v.  Sheppard,  27  Miss.  203  ;  Ludlow  v.  N.  Y.  &  H.  B.  R.,  12  Barh. 
440;  Merrifield  v.  Cobleigh,  4  Cush.  178,  184  ;  Bradstreet  v.  Clark,  21  Pick.  389  : 
M'Williams  v.  Nisly,  2  S.  &  R.  507,  513;  Martin  v.  Ballou,  13  Barb.  119  ;  Hoyt 
V.  Kimball,  49  N.  H.  322;  Sumner  v.  Darnell,  128  Ind.  38  ;  s.  c.  27  N.  E.  Rep. 
162.     But  see  Cleve.,  etc.  R.  R.  v.  Coburn,  91  Ind.  557. 

2  Voris  V.  Renshaw,  49  111.  425.  So  Woodworth  v.  Payne,  74  N.  Y.  196, 
where  a  condition  in  a  deed  of  land  "for  cliurch  purposes"  that  pews  should 
not  be  "  rented  or  sold  "  was  held  not  to  extend  to  a  sale  of  the  whole  church 
for  debt. 

3  Emerson  v.  Simpson,  43  N.  H.  475  ;  Page  v.  Palmer,  48  N.  H.  385. 


ESTATES   UPON    CONDITION.  9 

dies  before  that  day,  or  the  grantor  himself  marries  her,^  or 
on  condition  of  supporting  a  person,  who  dies  before  the  de- 
vise takes  effect,^  or  unless  the  grantee  shall  kill  a  certain 
person,  or,  if  the  estate  is  a  fee-simple,  in  case  he  shall  ever 
alien  it,^  that  the  estate  shall  be  defeated,  the  effect  is  to 
render  the  estate  absolute  in  the  grantee  or  devisee.  And 
this  principle  applies  as  well  to  estates  for  life  or  years  as  to 
those  in  fee.  And  the  same  would  be  the  effect  if  the  condi- 
tion was  for  the  exemption  of  the  property  from  the  ordinary 
incidents  belonging  to  such  propert}^  as  that  it  should  not  be 
liable  for  the  debts  of  the  grantee  or  devisee.^ 

§  944.  Valid  Restrictive  Conditions.  —  There  may  be  valid 
conditions  restricting  the  free  conveyance  of  an  estate  even 

1  Hughes  V.  Edwards,  9  Wheat.  489;  Taylor  v.  Sutton,  15  Ga.  103  ;  2  Fliut. 
Ileal  Prop.  232,  233 ;  Co.  Lit.  206  a ;  Badlani  v.  Tucker,  1  Pick.  28i. 

2  Parker  v.  Parker,  123  Mass.  584. 

8  Co.  Lit.  206  ;  Taylor  v.  Sutton,  15  Ga.  103  ;  Gadberry  v.  Sheppard,  27  Miss. 
203;  Blackstone  Bk.  v.  Davis,  21  Pick.  42;  Tud.  Gas.  796;  Brandon  v.  Robin- 
son, 18  Ves.  429  ;  Willis  v.  Hiscox,  4  Mylne  k  C.  197  ;  Bradley  v.  Peixoto,  3  Ves. 
324  ;  Henning  v.  Harrison,  13  Bush,  723  ;  Lovett  v.  Gillender,  35  N.  Y.  67  ; 
Jauretche  v.  Proctor,  48  Penn.  St.  466  ;  Kepple's  App.,  53  Penn.  St.  211  ;  Moore 
v.  Sanders,  15  S.  C.  440.  And  a  gift  over  in  event  of  such  alienation  is  void. 
Ibid.  How  far  a  condition  against  an  alienation  limited  in  point  of  time  is  good 
on  a  gift  in  fee  is  not  clear  upon  the  authorities.  In  Mandlebaura  v.  McDonell, 
29  Mich.  78,  every  such  condition  is  declared  to  be  bad,  because  the  grantor 
retains  no  reversion  ;  and  so  see  Ware  v.  Cann,  10  B.  &  C.  433  ;  Bradley  i'. 
Peixoto,  sicpra;  Latimer  v.  Waddell,  119  N.  C.  370  ;  s.  c.  26  S.  E.  Rep.  122  ;  and 
see  a»ite,  §  143.  Contra,  McWilliams  v.  Nisly,  2  S.  &  R.  507,  513;  Stewart  v. 
Brady,  3  Bush,  623 ;  Langdon  v.  Ingram,  28  Ind.  360.  The  cases  on  both  sides 
are  fully  collected  and  discussed  in  Mr.  Gray's  excellent  work  on  Restraints  on 
Alienation,  to  which  the  reader  is  referred  ;  and  the  conclusion  is  there  reached 
that  the  weight  of  authority  is  against  the  validity  of  such  restraints.  Where, 
however,  the  estate  is  less  than  a  fee,  whether  for  life  or  for  years,  a  condition  of 
forfeiture  upon  alienation  may  be  validly  annexed  thereto  at  its  creation,  and 
with  or  without  a  gift  over.     Gray,  Restr.  on  Alien.  §§  78-81. 

*  Blackstone  Bk.  v.  Davis,  21  Pick.  42  ;  Tud.  Cas.  796  ;  Brandon  v.  Robin- 
son, 18  Ves.  429  ;  McCleary  v.  Ellis,  54  Iowa,  311.  The  condition  intended  here 
is  a  bare  prohibition  or  direction  against  aliening  a  liability  for  debts  unaccom- 
panied by  a  forfeiture  or  gift  over  ;  for  if  these  latter  exist,  the  condition  is  good, 
as  we  have  seen  for  estates  less  than  a  fee.  See  preceding  note  ;  Gray,  Restr.  on 
Alien.,  uhi  supra.  But  in  some  recent  cases  such  a  prohibition  has  been  sustained 
where  the  gift  is  in  tru.st.  Broadway  Bk.  v.  Adams,  133  Mass.  170  ;  White  v. 
Thomas,  8  Bush,  661  ;  Overman's  App.,  88  Penn.  St.  276,  and  other  cases  in  the 
latter  State.  But  these  cases  are  contrary  to  the  well-settled  doctrine  of  the 
English  courts  which  has  been  acquiesced  in  by  the  great  weight  of  authority  in 
this  country.     See  Gray,  Restr.  on  Alien.,  Pt.  2,  C. 


10  ESTATES   UPON   CONDITION. 

in  fee,  as  where  the  grantee  is  not  to  convey  it  before  a  cer- 
tain time,  or  is  not  to  convey  it  to  certain  persons  named. ^ 
Thus,  though  a  right  to  have  partition  is  an  incident  to  a 
tenancy  in  common,  if  shares  of  an  estate  be  conveyed  to  sev- 
eral tenants  in  common,  and  it  is  for  the  interest  of  all 
that  it  should  remain  in  common  and  undivided,  and  in  the 
deeds  creating  these  shares  a  condition  is  inserted  that  the 
estate  should  be  suffered  to  remain  in  common,  it  is  held  to 
be  a  valid  condition.^  So  a  condition  in  a  deed  that  the 
grantee  shall  not  use  or  suffer  the  premises  to  be  used  for 
the  manufacture  or  sale  of  any  intoxicating  liquors  thereon, 
was  held  to  be  a  valid  one.^  And  a  devise  to  A  until  he  shall 
become  bankrupt,  with  a  devise  over  upon  such  a  contingency, 
would  be  good.* 

§  945.  Conditions  in  Restraint  of  Marriage.  —  An  estate  may 
be  settled  to  the  separate  use  of  a  feme  covert,  with  a  restric- 
tion as  to  conveyance  during  coverture.  But  such  restriction 
would  be  at  an  end  upon  her  becoming  discovert.^  If  the  con- 
dition be  in  restraint  of  marriage,  the  rule  seems  to  be  this: 
If  the  condition  be  precedent,  it  must  be  strictly  complied 
with  in  order  to  entitle  the  party  to  the  benefit  of  the  devise. 
But  if  the  condition  in  restraint  of  marriage  be  subsequent 
and  general  in  its  character  and  applied  to  an  unmarried  per- 
son, it  is  treated  as  a  mere  nullity,  and  the  estate  becomes 
absolute.^  But  if  the  condition  be  an  absolute  restraint  of 
marriage  until  the  devisee  is  twenty-one  years  of  age,  or  dur- 
ing the  widowhood  of  the  testator's  widow,  it  is  a  reasonable 
and  therefore  good  condition,  though  subsequent,  and,  if  vio- 
lated, will  defeat  the  estate. '^ 

1  Attwater  v.  Attwater,  18  Beav.  330 ;  overruling  Doe  v.  Pearson,  6  East,  173, 
which  held  that  the  condition  might  restrict  the  grantee  as  to  all  persons  except 
one.     Tud.  Cas.  794  ;  Co.  Lit.  223  a.     See  Anderson  v.  Gary,  36  Ohio  St.  56. 

2  Hunt  V.  Wright,  47  N.  H.  396. 
8  Plumb  V.  Tubbs,  41  N.  Y.  442. 
*  Lockyer  v.  Savage,  2  Str.  947. 

6  Tud.  Cas.  805. 

«  Story,  Eq.  §§  288,  289  ;  Bertie  v.  Falkland,  Freem.  220 ;  Morley  v.  Rennold- 
son,  2  Hare,  570  ;  Lloyd  v.  Lloyd,  2  Sim.  n.  s.  255,  where  a  similar  condition  on 
a  gift  to  a  widow  was  held  good.  See  also  Bellairs  v.  Bellairs,  L.  R.  18  Eq.  510  ; 
Williams  v.  Cowden,  13  Mo.  211  ;  Randall  v.  Marble,  69  Me.  310. 

7  Shackelford  v.  Hall,  19  111.  212;  Gough  v.  Manning,  26  Md.  347  ;    Common- 


ESTATES    UPON    CONDITION.  11 

§  946.  Unlawful  and  Impossible  Conditions  Precedent.  —  If 
the  condition  is  precedent,  inasmuch  as  the  estate  does  not 
vest  at  all  until  such  condition  happens,  the  effect  of  its  be- 
ing unlawful  or  impossible  is  that  the  estate  dependent  on  it 
fails,  and  the  grant  or  devise  becomes  wholly  void.^  And 
where  a  condition  precedent  consists  of  several  parts  united 
by  copulative  conjunction,  each  part  must  be  performed  be- 
fore the  estate  can  vest,^ 

§  947.  Illustrations.  —  Where  there  was  a  devise  of  lands  to 
A  and  B,  after  the  death  of  the  testator's  wife,  if  they  should 
continue  to  live  with  her  and  be  bound  to  her  as  servants 
until  they  were  married,  and  the  wife  was  unable  to  receive 
and  take  charge  of  them,  and  left  the  State  without  taking 
them  with  her,  and  died  in  another  State,  it  was  held,  that 
as  the  provision  was  for  the  testator's  wife,  and  as  she  by  her 
act  prevented  the  performance  of  the  condition,  it  became  an 
impossible  one,  and  the  devisees  took  the  estate.  Here  the 
court  must  have  regarded  this  condition  as  a  subsequent  one, 
which  was  to  defeat,  and  not  to  create,  an  estate. ^  So  where 
a  devise  to  A  B  was  upon  condition  that  he  took  the  name 

wealth  V.  Stauffer,  10  Penn.  St.  350 ;  Coppage  v.  Alexander,  2  B.  Mon.  313  ; 
Newton  v.  Marsden,  2  Johns.  &  H.  356 ;  Allen  v.  Jackson,  1  Ch.  D.  399 ;  Bostick 
V.  Blades,  59  Md.  231.  In  some  early  cases  it  was  held  that  there  should  be  a 
valid  gift  over.  Binnerman  v.  Weaver,  8  Md.  517  ;  Parsons  r.  Winslow,  6  JIass. 
169.  But  this  has  not  been  held  essential  in  more  recent  decisions.  Clark  r. 
Tennyson,  33  Md.  85.  Cises  supra.  Where  the  first  gift  is  only  "so  long  as," 
"  during,"  or  "  while  "  the  person  remains  unmarried,  it  is  held  valid  as  a  limita- 
tion and  not  a  condition,  and  a  gift  over  in  event  of  marriage  is  good.  Waters 
V.  Tazewell,  9  Md.  291  ;  Arthur  v.  Cole,  56  Md.  100 ;  Evans  v.  Eosser,  2  Hem, 
&  M.  190 ;  Harmon  v.  Brown,  58  Ind.  207  ;  Heath  v.  Lewis,  3  De  G.  M.  &  G. 
954 ;  Grace  v.  Webb,  2  Phill.  701  ;  Mansfield  v.  Mansfield,  75  Me.  509  ;  Sims  v. 
Gray,  109  Ind.  501 ;  s.  c.  9  N.  E.  Rep.  120.  Where  there  is  no  valid  gift  over  after  ■ 
a  gift  to  an  unmarried  person,  a  mere  forfeiture  upon  marriage  is  void.  Randall  v. 
Marble,  69  Me.  310;  Crawford  v.  Thompson,  91  Ind.  266.  But  if  there  is  a  valid 
gift  over,  and  the  whole  devise  indicates  that  provision  and  not  mere  restraint  was 
intended,  a  devise  over  upon  marriage  of  one  never  before  married  is  good.  Jones 
V.  Jones,  1  Q.  B.  D.  279. 

1  Co.  Lit.  206  ;  id.  218  a  ;  Vanhorne  v.  Dorranoe,  2  Ball.  304,  317  ;  Taylor  v. 
Mason,  9  Wheat.  325  ;  Mizell  v.  Burnett,  4  Jones  (N,  C.)  249  ;  Martin  v.  Ballou, 
13  Barb.  119  ;  Bertie  v.  Falkland,  2  Freem.  222. 

2  Harvy  v.  Aston,  Com.  Rep.  731-733  ;  .s.  c.  1  Atk.  374. 

3  Jones  V.  Doe,  1  Scam.  276.  See  United  States  v.  Arredondo,  6  Pet.  691,745  ; 
Whitney  v.  Spencer,  4  Cow.  39  ;  Merrill  v.  Emery,  10  Pick.  507  ;  Jones  v.  Walker, 
13  B.  Mon.  163  ;  Barksdale  v.  Elam,  30  Miss.  694. 


12  ESTATES   UPON   CONDITION. 

of  the  devisor,  and  took  a  certain  prescribed  oath,  this  was 
held  to  be  a  condition  subsequent.^ 

§948.  Devise  —  Time  for  Performance.  —  If  an  estate  is  de- 
vised upon  condition,  and  no  time  is  limited  in  which  it  is  to 
be  performed,  the  devisee  has  the  term  of  his  life  in  which  to 
perform  it.  Again,  if  the  devise  be  in  words  in  the  present 
tense  and  no  contrary  interest  appears,  it  imports  an  imme- 
diate interest,  which  vests  in  the  devisee,  upon  the  death  of 
the  testator,  if  no  intermediate  disposition  is  made  of  the 
estate.  And  a  condition  in  such  case,  attached  to  a  devise 
which  may  be  performed  at  any  time  as  well  after  as  before 
vesting,  will  be  regarded  as  a  condition  subsequent.^ 

§  949.  Conveyance  —  Time  for  Performance.  —  But  in  a  case 
of  a  conveyance  upon  condition,  where  a  prompt  performance 
thereof  is  necessary  to  give  to  the  grantor,  or  the  one  who  is 
to  avail  himself  of  the  same,  the  whole  benefit  contemplated 
to  be  secured  to  him,  or  where  its  immediate  fruition  formed 
his  motive  for  entering  into  the  agreement,  the  grantee  shall 
not  have  his  lifetime  for  its  performance,  but  must  do  it  in  a 
reasonable  time.^  And  this  doctrine  of  a  reasonable  time  for 
performance  has  been  applied  in  a  variety  of  cases,  as  where, 
for  instance,  an  estate  was  conveyed  on  condition  that  the 
grantee  removed  a  mortgage  outstanding  upon  it,  but  no  time 
was  fixed  in  which  it  was  to  be  done,  it  was  held  that  the 
condition  must  be  complied  with  in  a  reasonable  time.*  In 
a  case  where  the  grant  was  of  a  strip  of  land  by  A  to  a  rail- 
road company,  on  condition  that  the  road  was  finished  by 
such  a  day,  it  was  held  that  a  present  estate  passed,  and  that 
the  condition  was  a  subsequent  one.^  And  where,  as  in  the 
case  above  cited,  a  devise  of  a  lot  of  land  was  made  to  a  town 
upon  condition  that  they  erected  a  schoolhouse  in  a  certain 
place,  it  was  held  that  it  must  be  done  in  a  convenient  time, 
or  the  estate  would  be  forfeited.^ 

1  Taylor  u.  Mason,  9  Wlieat.  325  ;  Marwick  v.  Andrews,  25  Me.  525 ;  Horsey  v. 
Horsey,  4  Harringt.  517  ;  Webster  v.  Cooper,  14  How.  88. 

2  Finlay  v.  King,  3  Pet.  346  ;  Co.  Lit.  208  b,  209  a. 

8  Hamilton  v.  Elliott,  5  S.  &  R.  375;  Co.  Lit.  208  h;  Hayden  v.  Stoughton, 
5  Pick.  528. 

*  Ross  V.  Tremain,  2  Met.  495.     See  Stnyvesant  v.  The  Mayor,  11  Paige,  414. 

6  Kicoll  V.  N.  Y.  &  E.  R.  R.,  12  N.  Y.  121. 

6  Hayden  v.  Stoughton,  5  Pick.  528 ;  Allen  v.  Howe,  105  Mass.  241. 


ESTATES   UPON   CONDITION.  13 

§  950.  Implied  Conditions.  —  A  condition  in  law,  OF  one 
that  is  implied,  as  distinguished  from  an  express  condition, 
is  such  as  is  always  annexed  to  certain  estates,  although  not 
mentioned  in  the  instruments  creating  them.  Such,  for  in- 
stance, was  the  condition  at  common  law  annexed  to  every 
estate  for  life  or  years,  that  the  tenant  should  not  attempt 
to  create  a  greater  estate  than  his  own;  so  that  if  such  tenant 
enfeoffed  a  stranger  in  fee,  it  was  a  ground  of  forfeiture.^ 

§  951.  Who  may  enforce,  who  perform.  —  A  condition,  how- 
ever, defeats  the  estate  to  which  it  is  annexed  only  at  the 
election  of  him  who  has  a  right  to  enforce  it.  Notwithstand- 
ing its  breach,  the  estate,  if  a  freehold,  can  only  be  defeated 
by  an  entry  made,  and,  until  that  is  done,  it  loses  none  of  its 
original  qualities  or  incidents.^  And  any  one  who  is  inter- 
ested in  a  condition,  or  in  the  estate  to  which  it  is  attached, 
may  perform  it;  and  when  it  has  once  been  performed,  it  is 
thenceforth  gone  forever.^  And  if  a  person  in  whose  favor  a 
condition  is  created  once  dispense  with  it,  he  cannot  after- 
wards enter  for  a  subsequent  breach  of  the  condition.*  If  a 
condition  be  in  the  alternative,  the  one  who  is  to  perform  it 
may  elect  which  to  perform.  But  when  such  election  is 
made,  it  fixes  the  rights  of  the  parties.^  But  in  respect  to 
enforcing  a  condition  it  is  often  otherwise. 

§  952.  Illustrations.  —  Thus,  where  A  conveyed  parcels  of 
land  to  sundry  persons  at  different  times,  but  inserted  in  the 
deed  of  each  a  similar  condition  against  the  use  of  certain 
trades,  it  was  held  that,  though  for  a  breach  by  one,  no  other 
grantee  could  have  an  action  at  law  against  him  to  enforce 
the  condition,  equity  would  enforce  a  performance  of  it.^     So 

1  Co.  Lit.  215  a;  2  Bl.  Com.  153. 

2  1  Prest.  Est.  48  ;  Clialker  v.  Chalker,  1  Conn.  79;  Canal  Co.  v.  R.  R.  Co., 
4  Gill  &  J.  1,  121  ;  Phelps  v.  Chesson,  12  Ired.  194  ;  Willard  i;.  Henry,  2  N.  H. 
120;  Winu  v.  Cole,  Walker,  119  ;  King's  Chapel  v.  Pelharn,  9  Mass.  501  ;  Lud- 
low V.  N.  Y.  &  H.  R.  R.,  12  Barb.  440 ;  Tallman  v.  Snow,  35  Me.  342  ;  Webster 
V.  Cooper,  14  How.  488,  501  ;  Warner  v.  Bennett,  31  Conn.  477,  citing  the  text; 
Hubbard  v.  Hubbard,  97  Mass.  188  ;  Little  Falls  Water  Power  Co.  v.  Mahan, 
69  Minn.  253  ;  s.  C.  72  N.  W.  Rep.  69. 

3  Vermont  v.  Society,  etc.,  2  Paine,  C.  C.  545;  2  Crabb,  Real  Prop.  815. 

*  Dickey  v.  M'CulIough,  2  W.  &  S.  188  ;  Dumpor's  Case,  4  Rep.  119  ;  ante, 
§  650. 

5  Bryant  v.  Erskine,  55  Me.  153. 

6  Barrow  v.  Richard,   8  Paige,   351.     See  Collins  Mg.  Co.  v.  Marcy,  25  Conn. 


14  ESTATES   UPON    CONDITION. 

where  A  purchased  lands,  but  had  the  deed  made  to  B,  and 
B  sold  the  same  to  a  third  party,  and  inserted  in  his  deed  a 
forfeiture  of  the  estate  if  the  purchaser  erected  anything  on 
the  granted  premises  which  would  obstruct  the  view  from  A's 
house,  it  was  held  to  create  an  equitable  easement  of  prospect 
constituting  a  condition,  upon  a  breach  of  which  B  might 
enter  and  defeat  the  estate,  or  A  might  have  an  injunction 
in  his  own  name  to  prevent  any  such  erection.^ 

§  953.  Entry  for  Condition  broken.  —  By  the  common  law, 
the  only  mode  of  taking  advantage  of  a  breach  of  a  condition 
which  had  the  effect  to  defeat  or  work  a  forfeiture  of  an  estate 
was  by  an  entry,  upon  the  principle  that  it  required  as  solemn 
an  act  to  defeat  as  to  create  an  estate.  And  when  such  entry 
had  been  made,  the  effect  was  to  reduce  the  estate  to  the  same 
plight  and  to  cause  it  to  be  held  on  the  same  terms  as  if 
the  estate  to  which  the  condition  was  annexed  had  not  been 
granted. 2  But  where  a  life  estate  was  devised  upon  condition 
that  the  devisee  pay  a  certain  annuity,  with  a  limitation  over 
after  the  death  of  the  devisee  for  life,  and  the  latter  failed  to 
perform,  and  died  leaving  a  large  sum  in  arrear  and  unpaid, 
it  was  held  too  late  for  the  heirs  of  the  testator  to  take  advan- 
tage of  the  breach  by  making  an  entry,  after  the  estate  had 
passed  by  limitation  into  the  hands  of  the  remainder-man.^ 

§  954.  Who  may  enter  for  Condition  broken.  —  With  respect 
to  the  parties  entitled  to  exercise  this  right  to  enter  and  defeat 
the  estate  of  him  who  holds  upon  condition,  there  seems  to  be 
a  difference  between  conditions  in  law  and  in  deed.  If  there 
be  a  breach  of  the  conditions  in  law,  the  lessor  or  his  heirs,  or, 
if  he  have  aliened  his  estate,  his  assignee,  may  avail  himself 
of  the  right  to  enter.*     But  of  conditions  in  deed  no  one  but 

242  ;  Parker  v.  Nightingale,  6  Allen,  341.  The  numerous  class  of  cases  in  which 
conditions  and  stipulations  in  each  of  several  parcel  conveyances  of  a  single  lot  are 
held  to  be  restrictions  in  the  nature  of  equitable  easements  binding  and  enuring  to 
the  several  grantees  in  equity,  will  be  more  fully  considered  under  the  head  of 
Easements.     See  post,  §  1242. 

1  Gibert  v.  Peteler,  38  N.  Y.  165. 

2  1  Prest.  Est.  48,  50  ;  2  Flint.  Real  Prop.  231  ;  1  Prest.  Est.  46 ;  Co.  Lit. 
201  a,  n.  84 ;  Walker,  Am.  Law,  207  ;  Sheppard,  Touch,  fol.  ed.  494  ;  Co.  Lit. 
218  a  ;  Sperry  v.  Sperry,  8  N.  H.  477  ;  McKelway  v.  Seymour,  29  N.  J.  321,  329  ; 
Com.  Dig.  0.  6. 

8  Williams  v.  Angell,  7  R.  L  145. 

<  Co.  Lit.  214  ;  Sheppard,  Touch,  (fol.  ed.),  541 ;  2  Crabb,  Real  Prop.  835. 


ESTATES    UPON    CONDITION.  15 

he  who  creates  the  estate  or  his  heirs,  as,  for  instance,  the 
heirs  of  a  devisor,  or,  in  case  of  a  devise  of  the  contingent 
right,  such  devisee  or  his  heirs,  can  take  advantage  by  enter- 
ing and  defeating  the  estate.  It  is  a  right  which  cannot  be 
aliened  or  assigned,  or  pass  by  a  grant  of  the  reversion  at 
common  law.^  As  an  example  of  the  indestructibility  of  a 
condition  when  once  attached  to  an  estate,  A  conveyed  land 
upon  condition  expressed  in  the  deed.  The  purchaser  gave 
a  note  for  the  purchase-money  secured  by  a  mortgage  of  the 
premises.  The  mortgagee  sold  the  note  and  mortgage,  and 
assigned  the  same  to  a  third  party.  The  condition  in  the 
deed  having  been  broken,  the  original  grantor  entered  to 
defeat  the  estate,  and  it  was  held  that  he  might  do  so,  and 
that  the  assignee  of  the  mortgage  took  it,  subject  to  the  origi- 
nal condition,  and  liable  to  be  defeated  by  a  breach  thereof 
committed  or  suffered  by  the  mortgagor. ^  Nor  can  the  bene- 
fit of  a  condition  in  a  grant  be  reserved  to  any  one  but  the 
grantor  and  his  heirs ;  a  stranger  cannot  take  advantage  of 
it.^  And  yet  this  proposition,  though  generally  laid  down  in 
broad  terms,  requires  certain  limitations.  In  case  of  leases, 
the  statute  32  Hen.  VIII.  c.  34,  extends  to  assignees  or  grantees 
of  the  reversion  the  same  rights  of  entry  for  condition  broken 
as  the  grantor  himself  had.^  And  if  the  condition  be  attached 
to  a  particular  estate,  and  the  reversioner  grant  away  his  re- 
version, the  condition  is  gone  forever.  He  could  not  enforce 
it  himself,  because  he  had  parted  with  all  his  right;  nor 
could  his  assignee,  because  the  right  was  not  assignable.^ 
And,  because  such  right  is  not  assignable,  it  is  universally 

•s. 

^  Lit.  §  347  ;  Co.  Lit.  214  a,  where  the  reason  given  is  the  avoidance  of  main- 
tenance. Gray  v.  Blanchard,  8  Pick.  284.  See  Throp  v.  Johnson,  3  Ind.  343  ; 
Hooper  v.  Cammings,  45  Me.  3.59  ;  1  Smith's  Lead.  Cas.  (.5th  Amer.  ed.)  114  ; 
Winn  V.  Cole,  Walker,  119;  Cross  v.  Carson,  8  Blackf.  138;  Van  Rensselaer  v. 
Ball,  19  N.  Y.  100;  Lit.  §  247;  Gibert  v.  Peterler,  38  N.  Y.  165;  Guild  v. 
Richards,  16  Gray,  309. 

2  Merrill  v.  Harris,  102  Mass.  326. 

3  Fonda  V.  Sage,  46  Barb.  109,  122;  Shep.  Touch.  120.  And  this  extends  to 
cases  of  grants  upon  condition  by  the  government.  Schulenberg  v.  Harriman, 
21  Wall.  44. 

*  NicoU  V.  N.  Y.  &  Erie  R.  R.,  12  N.  Y.  121,  131  ;  Van  Rensselaer  v.  Ball, 
19  N.  Y.  100,  104;  ante,  §  653. 

6  Hooper  v.  Cummings,  45  Me.  359. 


16  ESTATES  UPON   CONDITION. 

true  that  a  stranger  cannot  take  advantage  of  a  condition.  ^ 
Such  right  is  not  a  reversion,  nor  a  possibility  of  a  reversion, 
nor  is  it  an  estate  in  land ;  it  is  a  mere  chose  in  action,  and, 
when  enforced,  the  grantor  is  in  by  the  forfeiture  of  the  con- 
dition, and  not  by  reverter.  ^  Yet  by  a  law  of  Pennsylvania, 
it  is  something  which  may  be  assigned,  and  would  pass  under 
a  sheriff's  sale,  and  may  be  availed  of  by  an  assignee  of  the 
grantor.  3 

§  955.  Right  of  Grantor's  Devisee  to  enter.  —  The  law  is  not 
uniform  as  to  how  far  a  devisee  of  one  who  has  granted  an 
estate  upon  condition  may  exercise  the  right  of  defeating  it 
by  entry  for  a  breach  of  the  condition.  In  New  Jersey,  it  has 
been  held  that  by  the  common  law  heirs  only,  and  not  de- 
visees of  such  grantor,  or,  if  the  grantor  be  a  body  politic, 
their  successors  only,  could  take  advantage  of  the  breach ; 
neither  grantees  of  the  reversion  nor  remainder-men  could 
do  it,  though  now,  by  statute,  devisees  may  there  exercise 
the  right.*  Whereas,  in  Massachusetts,  the  devisee  of  such 
grantor,  or  the  residuary  devisee  or  his  heir,  where  the  con- 
ditional estate  is  created  by  devise  in  the  same  will,  is  held 
competent  to  enter  and  defeat  the  estate  for  condition  broken, 
like  an  heir  at  common  law.^  But  if  the  devise  be  to  one  or 
more  heirs  of  an  estate  upon  condition,  without  any  such 
residuary  clause,  it  would  be  for  the  other  heirs  of  the  devisor 

1  NicoU  V.  N.  Y.  &  Erie  R.  R.,  12  Barb.  460  ;  Forris  v.  Milner,  20  Ga.  563  ; 
Smith  V.  Braniian,  13  Cal.  107  ;  Warner  v.  Bennett,  31  Conn.  468,  478. 

•^  De  Peyster  v.  Michael,  6  N.  Y.  467  ;  Nicoll  v.  N.  Y.  &  Erie  R.  R.,  12  N.  Y. 
121. 

3  McKissick  v.  Pickle,  16  Penn.  St.  140. 

*  Southard  v.  Cent.  R.  R.,  26  N.  J.  1,  21  ;  Cornelius  v.  Ivins,  id.  386. 

6  Hayden  v.  Stoughton,  5  Pick.  528  ;  Clapp  v.  Stoughton,  10  Pick.  463  ;  Brig- 
ham  I'.  Shattuck,  10  Pick.  306,  309  ;  Austin  v.  Cam  bridge  port  Parish,  21  Pick. 
215,  224.  See  also  Webster  v.  Cooper,  14  How.  488.  See,  upon  those  points, 
Shep.  Touch.  149 ;  Nicoll  v.  N.  Y.  &  Erie  R.  R.,  12  N.  Y.  121,  131  ;  s.  c.  12  Barb. 
460  ;  Jones  v.  Roe,  8  T.  R.  88  ;  Chauncy  v.  Graydon,  2  Atk.  616,  623.  The 
Alassachusetts  doctrine,  that  a  devisee  may  enter  for  breach  of  condition  to  defeat 
an  estate,  was  applied  to  the  case  of  an  assignee  of  a  bankrupt  grantor's  estate. 
Stearns  v.  Harris,  8  Allen,  597.  And  it  should  be  understood  that  this  apparent 
departure  from  the  principle  of  the  common  law  in  respect  to  conditional  estates 
grows  out  of  the  construction  of  a  clause  in  the  statute  of  that  State  (Rev.  Stat, 
c.  101,  §  4),  which  it  is  too  late  to  controvert,  however  questionable  that  con- 
struction may  originally  have  been. 


ESTATES   UPON    CONDITION.  17 

to  enter  for  a  breach  of  the  condition. ^  Tlie  rule  in  England, 
as  settled  in  the  case  cited  below,  is  this:  A  devisee  cannot 
avail  himself  of  a  breach  of  condition  created  by  his  devisor. 
And  if  there  be  a  devise  on  condition  to  the  devisor's  heir  at 
law,  and  the  same  be  broken,  it  defeats  the  estate  on  the 
ground  of  being  a  conditional  limitation  instead  of  a  condi- 
tion at  common  law.^  But  where  A  mortgaged  land  to  B, 
conditioned  to  support  B  and  pay  a  sum  of  money  to  C,  and, 
A  having  died,  the  estate  descended  to  B  as  his  heir  at  law,  it 
was  held  to  extinguish  the  mortgage  by  the  merger  thereby 
effected.  But  B  having  conveyed  the  estate  to  a  third  person 
by  deed,  in  which  was  a  recital  that,  as  a  part  of  the  consid- 
eration, the  purchaser  was  to  perform  the  condition  contained 
in  A's  deed  to  B,  it  was  held  to  create  no  lien  upon  the  estate, 
but  rendered  the  purchaser  liable  in  assumpsit  to  C  for  the 
payment  of  the  sum  originally  secured  in  the  mortgage  of  A 
to  B.3 

§  956.  Reserving  Right  of  Entry.  —  Where  the  condition  of 
a  grant  is  express,  there  is  no  need  of  reserving  a  right  of 
entry  for  a  breach  thereof,  in  order  to  enable  the  grantor  to 
avail  himself  of  it.^  Nor  is  it  necessary  to  name  the  heir  of 
the  grantor,  or  to  reserve  to  him  such  right  of  entry,  in  order 
to  his  exercising  the  same  in  case  of  a  breach  of  the  condi- 
tion.^ And  where  a  grant  on  condition  was  made  to  one  of 
several  sons,  and,  after  the  death  of  the  grantor,  the  condi- 
tion was  broken,  it  was  held  that  any  one  of  these  might  enter 
and  avoid  the  grant  as  to  his  own  part  of  the  estate.® 

§  957.  When  Actual  Entry  necessary  to  enforce  Condition.  — 
But  nothing  short  of  an  actual  entry  will  serve  to  defeat  an 
estate  upon  a  condition  which  has  been  broken.''     If  several 

1  Wheeler  v.  Walker,  2  Conn.  196. 

2  Avelyn  v.  Ward,  1  Ves.  Sen.  420.  See  also  Henderson  v.  Hunter,  59  Peun. 
St.  335,  341. 

3  Norris  v.  Laberee,  58  Me.  260. 

*  Jackson  v.  Allen,  3  Cow.  220  ;  Gray  v.  Blanchard,  8  Pick.  284  ;  Lit.  §  331  ; 
Osgood  V.  Abbott,  58  Me.  73,  79. 

s  Jackson  j;.  Topping,  1  Wend.  388;  Sheppard,  Touch,  (fol.  ed.)  489,  where  it 
is  said,  "  For  an  heir  shall  take  advantage  of  a  condition,  though  no  estate  de- 
scend to  him  from  the  ancestor."     Osgood  v.  Abbott,  supra. 

®  Jackson  v.  Topping,  1  Wend.  388  ;  Bowen  v.  Bowon,  18  Conn.  535. 

''  Fonda  v.  Sage,  46  Barb.  109  ;  Osgood  y.  Abbott,  supra. 
VOL.    II.  —  2 


18  ESTATES   UPON    CONDITION. 

parcels  are  conveyed,  upon  condition,  by  the  same  deed,  or 
are  embraced  in  the  same  mortgage  and  are  all  situate  in  the 
same  county,  an  entry  upon  one  in  the  name  of  the  whole  will 
be  sufficient  to  enforce  the  condition  as  to  all  of  the  parcels. 
But  if  there  be  different  deeds  of  the  parcels,  with  different 
conditions  therein,  the  entry  must  be  made  upon  each.^  It 
cannot  be  done  by  action,  for  when  the  grantor  conveyed  his 
estate  he  parted  with  the  seisin,  which  he  can  only  regain  by 
an  entry  made.^  If  the  grantor  is  himself  in  possession  of 
the  premises  when  the  breach  happens,  the  estate  revests  in 
him  at  once  without  any  formal  act  on  his  part,  and  he  will 
be  presumed,  after  the  breach,  to  hold,  for  the  purpose  of 
enforcing  a  forfeiture,  unless  he  waive  the  breach,  as  it  is 
competent  for  him  to  do,  and  as  be  may  do  by  his  acts.^  But 
to  have  possession,  in  such  a  state  of  things,  work  a  forfeit- 
ure, it  must  be  at  the  election  of  the  grantor.  He  is  at  lib- 
erty to  waive  the  breach,  and  thereby  save  the  forfeiture.* 
Where  the  grantor  covenanted  to  stand  seised  to  his  own  use 
for  life,  and,  after  his  death,  to  the  use  of  his  son  in  fee,  but 
upon  condition,  and  the  son  failed  to  perform  the  condition, 
it  was  held  that  the  grantor  being  in  possession  need  not 
make  a  formal  entry,  or  make  a  formal  claim  of  the  land  to 
defeat  the  estate  of  the  son.^ 

§  958.  Intention  accompanying  Entry.  —  The  entry,  to  be 
effectual  to  work  a  forfeiture  of  an  estate,  must  be  made  with 
an  intention  to  produce  that  effect.  And  where  an  heir  en- 
tered after  a  breach  of  condition,  but  declared  the  title  under 
which  he  entered  not  to  be  that  in  favor  of  which  the  con- 

1  Green  v.  Pettingill,  47  N.  H.  375. 

2  Sheppard,  Touch,  (fol.  ed.)  496  :  Co.  Lit.  218  a;  Chalker  v.  Chalkev,  1  Coim. 
79;  Lincoln  Bk.  v.  Drummond,  5  Ma^ss.  321;  Sperry  v.  Sperry,  8  N.  H.  477; 
Austin  V.  Cambridgeport  Parish,  21  Pick.  215.  Except  by  the  technical  action  of 
ejectment  where  an  entry  is  confessed.  In  Massachusetts,  entry  in  case  of  an 
action  to  recover  land  forfeited  is  dispensed  with  by  statute.  Pub.  Stat.  c.  173, 
§  3  ;  Phelps  v.  Chesson,  12  Ired.  1^4  ;  Ludlow  v.  N.  Y.  &  Harl.  E.  R.,  12  Barb. 
440  ;  Tallman  v.  Snow,  35  Me.  342  ;  Stearns  v.  Harris,  8  Allen,  598  ;  Austin  v. 
Cambridgeport  Parish,  supra. 

3  Willard  V.  Henry,  2  N.  H.  120  ;  Hamilton  v.  Elliott,  5  S.  &  R.  375  ;  An- 
drews V.  Senter,  32  Me.  394. 

*  Hubbard   v.    Hubbard,    97  Mass.    188  ;    Guild  v.   Richards,    16  Gray,  309  ; 
Rogers  v.  Snow,  118  Mass.  118,  123. 
°  Rollins  V.  Riley,  44  N.  H.  1,  13. 


ESTATES   UPON    CONDITION.  19 

dition  was  made,  it  was  held  not  to  avoid  the  estate  of  the 
grantee,^  though  it  is  not  necessary  when  making  such  entry 
to  give  notice  to  the  feoffee  why  it  is  done.^ 

§  9o9.  Conditions  enforced  regardless  of  Damage.  —  It  is  not 
necessary  in  order  to  advantage  being  taken  of  a  breach  of 
condition,  that  it  should  have  caused  any  injury  to  the  party 
who  enters  for  that  purpose.  In  a  case  already  cited,  the 
condition  was  that  the  grantee  should  not  make  a  window  in 
a  certain  part  of  the  house  conveyed,  and  before  it  was  done 
the  grantor  had  ceased  to  have  any  interest  in  the  premises  to 
be  affected  by  its  being  opened,^  But  it  was  held  in  one  case, 
that  where  the  grantor  of  an  estate  upon  condition,  before  any 
breach,  conveyed  and  assigned  all  his  property,  right,  claim, 
and  demand  upon  the  estate  to  a  stranger,  it  operated  to 
discharge  the  condition,  and  render  the  estate  absolute  in 
the  grantee  upon  condition,  since,  by  such  conveyance,  the 
stranger  could  not  acquire  any  right  to  enter  for  the  breach 
of  the  condition.*  Thus,  where  the  grantor  upon  condition 
conveyed  his  real  estate  to  his  son,  who  was  his  heir-at-law, 
including  within  the  description  thereof  the  land  which  he 
had  granted  upon  condition;  the  condition  having  been 
broken,  the  son  as  grantee  or  heir  undertook  to  enter  to  de- 
feat the  estate  in  the  first  grantee.  But  it  was  held  that  as 
grantee  he  could  not  exercise  the  right,  and  that  his  right 
as  heir  was  cut  off  by  his  father's  deed,  so  that  nothing  de- 
scended to  him  from  his  father.^  It  is  no  valid  objection  to 
the  enforcement  of  a  forfeiture  for  condition  broken,  that  the 
grantor  may  resort  to  an  action  of  covenant  broken  for  his 
remedy,  or  might  enforce  the  performance  of  the  condition 

1  Bowen  v.  Bowen,  18  Conn.  535. 

2  Hamilton  v.  Elliott,  5  S.  &  R.  375. 
8  Gray  v.  Blanchard,  8  Pick.  284. 

*  Uuderhill  v.  Sara.  &  W.  R.  R.,  20  Barb.  455.  See  Sheppard,  Touch,  (fol.  ed.) 
601.  In  New  York,  where  land  is  conveyed  «in  fee,  reserving  the  payment  of 
rent,  with  a  clause  of  forfeiture  of  the  granted  premises  if  the  same  is  not  paid, 
the  grantor  may  have  ejectment  to  recover  the  premises  without  a  previous  de- 
mand, the  common  law,  requiring  such  previous  demand,  having  been  changed 
by  statute.  '  Hosford  v.  Ballard,  39  N.  Y.  147,  152  ;  Cruger  v.  McLaury,  41  N.  Y. 
219. 

5  Shep.  Touch.  158  ;  5  Vin.  Abr.  Condition,  5  D.  11 ;  Perkins,  §§  830-833 ; 
Rice  V.  Boston  &  W.  R.  R.,  12  Allen,  141  ;  Hooper  v.  Cummings,  45  Me.  359. 


20  ESTATES   UPON    CONDITION. 

by  a  process  in  equity.  If  he  have  alternative  remedies,  the 
court  will  not  compel  him  to  elect  one  instead  of  the  other.  ^ 

§  960.  Where  Breach  of  Condition  excused.  —  As  a  condi- 
tion subsequent  may  be  excused,  when  its  performance  be- 
comes impossible  by  the  act  of  God,^  or  by  the  act  of  the 
party  for  whose  benefit  it  is  created, ^  or  is  prohibited  or  pre- 
vented by  act  of  the  law,*  so  it  may  be  waived  by  the  one  who 
has  a  right  to  enforce  it.  In  the  former  case  the  condition  is 
discharged  altogether,  and  the  estate  made  absolute;  in  the 
latter  the  estate  is  relieved  from  the  consequence  of  a  breach 
thereof.  But  among  the  circumstances  which  might  excuse 
performance,  the  fact  that  one  who  is  to  do  the  act  is  a  minor 
at  the  time  is  not  a  sufficient  cause,  since  that  does  not  ren- 
der the  performance  impossible  or  unlawful.^  But  where  the 
devise  was  upon  condition  that  the  devisee  should  pay  certain 
legacies,  and  one  of  the  legatees  was  absent  and  did  not  re- 
turn to  demand  the  legacy,  it  was  held,  that  a  neglect  to  pay 
such  legacy  was  not  a  breach  of  the  condition;  performance 
was  excused  until  the  devisee  demanded  payment.* 

§  961.  "Waiver.  —  A  forfeiture  may  be  saved  though  a  con- 
dition may  have  been  broken,  if  the  party  who  has  the  right 
to  avail  himself  of  the  same  waives  this  right,  which  he  may 
do  by  acts  as  well  as  by  an  express  agreement.  Thus,  where 
the  condition  of  a  lease  was  that  the  lessee  should  not  assign, 
and  having  done  so  the  lessor  accepted  rent  from  the  assignee, 
or  where  the  condition  was  that  the  grantee  should  pay  an 
annuity  by  such  a  time,  which  he  failed  to  do,  but  subsequent 
to  that  time  the  grantor  accepted  it.'^  So  where  the  lessor 
reserved  the  right  to  enter  and  dispossess  tlie  tenant  if  he 
failed  to  pay  the  rent  at  a  certain  time,  but  upon  failure  to 

^  Stuyvesant  v.  The  Mayor,  11  Paige,  414. 

2  Sheppard,  Touch.  498,  fol.  ed.  ;  Merrill  r.  Emery,  10  Pick.  507  ;  Walker, 
Am.  Law,  298  ;  Parker  v.  Parker,  123  Mass.  584. 

3  Co.  Lit.  206  ;  Com.  Dig.  Condition,  L.  6  ;  11  Am.  Jur.  42. 

*  Brewster  v.  Kitchell,  1  Salk.  1 98 ;  Anglesea  v.  Church  Wardens,  6  Q.  B. 
107,  114. 

a  Cross  v.  Carson,  8  Blackf.  138  ;  Garrett  v.  Scouten,  3  Denio,  334,  340. 

6  Bradstreet  v.  Clark,  21  Pick.  389. 

7  Chalker  v.  Chalker,  1  Conn.  79  ;  Walker,  Am.  Law,  299  ;  Jackson  v.  Crys- 
ler,  1  Johns.  Cas.  125  ;  Hubbard  v.  Hubbard,  97  Mass.  188  ;  Goodright  v.  Davids, 
Cowp.  803. 


ESTATES   UPON    CONDITION.  21 

make  such  payment  the  lessor  sued  for  and  rccoTcrcd  the 
same,  or  voluntarily  accepted  rent  after  such  failure  to  pay.^ 
The  conduct  of  the  lessor  or  grantor  in  such  and  similar  cases 
is  regarded  as  evidence  of  his  agreement  and  consent,  and  as 
affirming  that  the  estate  still  continues,  notwithstanding  the 
breach  of  the  condition.*'^  And  where  a  forfeiture  has  been 
waived,   a  court  of  law  will  not  aid  in  enforcing  it.^ 

§  962.  Waiver,  continued.  —  But  a  mere  silent  acquiescence 
in,  or  parol  assent  to,  an  act  which  has  constituted  a  breach 
of  an  express  condition  in  a  deed,  would  not  amount  to  a 
waiver  of  a  right  of  forfeiture  for  such  breach.*  Where,  how- 
ever, a  grant  to  a  railroad  company  of  land  was  upon  condi- 
tion that  the  road  should  be  completed  by  a  certain  time, 
which  was  not  done,  and  after  that,  the  grantor,  knowing  the 
fact,  suffered  the  company  to  go  on  and  incur  expenses  in 
constructing  their  road,  and  made  no  objection,  it  was  held 
to  be  a  waiver  of  the  condition  and  forfeiture.^  And  it  is 
laid  down  as  a  general  principle  that  a  condition  which,  if 
taken  advantage  of,  destroys  the  whole  estate,  if  once  dis- 
pensed with,  in  whole  or  in  part,  is  gone  forever,  for  a  condi- 
tion being  an  entire  thing  cannot  be  apportioned  except  by 
act  of  law.  Thus,  where  a  grant  was  made  to  a  company  on 
condition  that  they  should  erect  a  bloomery  on  the  estate  by 
such  a  time,  and  the  grantor  afterwards  waived  that,  and 
gave  them  permission  to  erect  a  blast  furnace  in  its  stead, 
and  extended  the  time  for  its  erection,  it  was  held  that  a 
failure  to  erect  the  furnace  within  the  extended  time  was  not 
a  ground  of  forfeiture.  The  condition  was  gone,  and  the 
terms  of  the  grant  did  not  create  a  covenant.^ 

»  Coon  V.  Brickett,  2  N.   H.  163. 

2  Sheppard,  Touch,  (fol.  ed.)  499,  500;  Co.  Lit.  211  5  ;  3  Salk.  3.  But  in 
respect  to  the  receipt  of  rent  being  a  waiver  of  a  forfeiture  for  non-payment 
at  the  time  it  was  due,  there  is  a  difference  of  opinion.  Sutherland,  J.,  in 
Jackson  v.  Allen,  3  Cow.  220,  held  it  must  be  rent  accruing  due  after  the  breach 
to  constitute  a  waiver.  See  also  2  Crabb,  Real  Prop.  840.  And  this  seems  the 
better  doctrine.     Hunter  v.  Osterhoudt,  11  Barb.  33  ;  3  Salk.  3  ;  ante,  §  664. 

8  Guild  V.  Richards,  16  Gray,  309;  Andrews  v.  Senter,  32  Me.  394,  397. 

*  Gray  v.  Blanchard,  8  Pick.  284  ;  Jackson  v.  Crysler,  1  Johns.  Cas.  125. 

6  Ludlow  V.  N.  Y.  &  Harl.  R.  R.,  12  Barb.  440.  '^  V 

6  Sharon  Iron  Co.  v.  Erie,  41  Penn.  St.  341  ;  Williams  v.  Dakin,  32'  Wend. 
201,  209. 


22  ESTATES   UPON    CONDITION. 

§  9G3.  Equitable  Relief  against  Forfeiture.  —  Sometimes  equity 
will  relieve  against  the  consequences  of  a  breach  of  a  condi- 
tion, and  save  the  estate  from  forfeiture.  But  equity  never 
lends  itself  to  enforce  a  forfeiture. ^  The  proposition,  it  will 
he  perceived,  relates  to  cases  where  the  estate  has  vested,  and 
is  in  danger  of  being  defeated  by  a  failure  to  perform  a  con- 
dition subsequent. 2  And  the  only  cases  where  equity  inter- 
poses as  to  such  conditions  are,  where  the  failure  to  perform 
has  been  the  effect  of  accident,  and  the  injury  is  capable  of 
compensation  in  damages  which  the  court  have  the  means  of 
measuring,  and  where  the  grantor  can  be  made  perfectly  se- 
cure and  indemnified,  and  can  be  placed  in  the  same  situa- 
tion as  if  the  occurrence  had  not  happened.  This  applies  to 
cases  where  the  condition  is  for  the  payment  of  money  at  a 
particular  time,  and  compensation  for  the  delay  can  be  meas- 
ured by  the  interest  during  that  time.^  But  where  the  condi- 
tion is  for  the  performance  of  a  collateral  act,  the  rule  is 
different,  as  the  court  have  no  standard  by  which  to  measure 
the  damages.'^  Among  the  cases  illustrating  these  proposi- 
tions is  one  where  the  grantor  granted  his  estate  upon  con- 
dition that  the  grantee  should  pay  and  discharge  a  certain 
mortgage  debt  with  interest,  which  he  failed  to  do,  and  the 
grantor  himself  paid  it,  and  entered  upon  the  land  for  condi- 
tion broken  without  notice,  in  order  to  enforce  a  forfeiture. 
He  then  sued  for  possession  of  the  estate,  and  the  court 
ordered  a  stay  of  proceedings  in  order  to  permit  the  tenant  to 
pay  the  amount  due  with  interest,  and  thereby  save  his  estate 
from  forfeiture,  there  having  been  no  wilful  delay. ^     And  it 

1  Warner  v.  Bennett,  31  Conn.  478. 

2  City  Bk.  V.  Smith,  3  Gill  &  J.  265.  But  qucere  as  to  conditions  precedent, 
2  Greeni.  Cruise,  30 ;  Haywnrd  v.  Angell,  1  Vern.  222. 

3  Williams  V.  Angell,  7  R.  I.  145,  152. 

*  Laussat,  Fonbl.  Eq.  286,  287,  n.  ;  Livingston  v.  Tompkins,  4  Johns.  Ch. 
415,  431  ;  Skinner  i;.  Dayton,  2  Johns.  Ch.  526  ;  Bacon  v.  Huntington,  14  Conn. 
92  ;  City  Bk.  v.  Smith,  3  Gill  &  J.  265;  Storj',  Eq.  Jur.  §§  1321-1324  ;  Hill  v. 
Barclay,  18  Ves.  56  ;  Henry  v.  Tapper,  29  Vt.  358,  372. 

5  Sanborn  v.  Woodman,  5  Cush.  36  :  Stone  v.  Ellis,  9  Cash.  95.  This  principle 
is  further  illustrated  by  the  case  of  Hancock  v.  Carlton,  6  Gray,  39,  where  the 
defendant  conveyed  to  one  Clark  an  estate  by  deed,  in  which  a  condition  was  in- 
serted, that  the  grantee  should  save  the  grantor  harmless  from  the  payment  of  cer- 
tain recited  debts,  which  were  secured  by  mortgages  upon  the  granted  premises. 
Clark,  at  the  same  time,  gave  the  defendant  a  mortgage  of  the  premises  to  secure 


ESTATES    UPON    CONDITION.  23 

has  become  a  familiar  principle,  both  at  law  and  in  equity, 
that  if  the  lessor  sues  to  recover  premises  for  a  forfeiture  by 
non-payment  of  rent,  the  proceedings  will  be  stayed  if  the 
lessee  will  pay  the  rent  in  arrear  and  damagcs.i 

§  964.  Breaches  against  which  Equity  will  not  relieve.  —  But 
if  the  act  be  wilfully  done,  or  be  one  for  which  the  court  have 
no  certain  rule  by  which  to  measure  the  damages  beyond  their 
own  arbitrary  judgment  in  the  matter,  equity  will  not  relieve. ^ 
And  among  the  acts  which,  as  breaches  of  condition,  courts 
have  refused  to  relieve  against,  are  aliening  or  assigning  a 
term  ^  or  a  condition  to  repair  or  to  lay  out  a  certain  sum  of 
money  in  repairs  on  the  premises,*  or  neglecting  to  insure  the 
premises,^  or  suffering  third  parties  to  use  a  way  across  leased 
premises,*"  and  the  like. 

§  965.  Equitable  Relief  —  Recapitulation.  —  As  a  general 
proposition,  therefore,  courts  will  not  interfere  to  relieve 
tenants  of  estates  against  the  consequences  of  a  breach  of  a 
condition  affecting  them  at  common  law,  except  where  the 
condition  consists  in  the  payment  of  money,  which  forms,  as 

the  payment  of  the  purchase-money  over  and  above  the  aforesaid  mortgages,  and 
then  made  a  second  mortgage  to  the  plaintiff.  Both  plaintiff  and  Clark  having 
failed  to  pay  the  mortgages  and  save  defendant  harmless,  he  entered  upon  the 
premises  for  a  breach  of  condition  at  common  law,  as  having  been  thereby  forfeited 
and  become  irredeemable.  The  plaintiff  brought  a  bill  in  equity  to  redeem,  and 
the  court  held  that,  as  the  condition  was  to  secure  the  payment  of  a  certain  debt, 
it  might  be  treated  in  equity  as  a  penalty,  and  be  relievable  accordingly,  upon  evi- 
dence that  it  was  occasioned  by  accident,  mistake,  fraud,  or  sur{)rise,  where  there 
had  been  no  laches  on  the  part  of  the  one  who  was  to  perform.  But  inasmuch  as, 
upon  a  hearing,  the  court  found  the  party  guilty  of  laches,  the  prayer  of  the  plain- 
tiff was  denied.     See  Story,  Eq.  §§  1321-1323. 

1  Atkins  V.  Chilson,  11  Met.  112;  2  Greenl.  Cruise,  31  ;  Pliillips  v.  Doelittle, 
8  Mod.  345  ;  Goodtitle  v.  Holdfast,  2  Stra.  900  ;  Hill  v.  Barclay,  18  Yes.  56. 

2  Descarlett  V.  Dennett,  9  Mod.  22;  AVafer  v.  .Mocato,  id.  112;  Northcote  v. 
Duke,  2  Eden,  322,  n.  In  Elliott  v.  Turner,  13  Simons,  Ch.  485,  it  is  held  that 
loilfid  in  such  a  case  is  the  same  as  a  voluntary  act  of  the  party.  Courts  will  not 
relieve  except  when  the  damages  are  certain.  Reynolds  ik  Pitt,  2  Price,  212,  n.  ; 
Hill  V.  Barclay,  18  Ves.  56  ;  Henry  v.  Tupper,  29  Vt.  358. 

3  Wafer  v.  Mocato,  9  Mod.  112  ;  Hill  v.  Barclay,  18  Ves.  56. 

*  Hill  V.  Barclay,  18  Ves.  56  ;  Bracebridge  v.  Buckley,  2  Price,  200. 

5  Reynolds  v.  Pitt,  2  Price,  212,  n.  ;  Rolfe  v.  Harri.s  id.  206,  n. 

6  Descarlett  v.  Dennett,  9  Jlod.  22.  The  power  of  a  court  of  equity  to  enforce 
a  restriction  or  equitable  easement,  whether  framed  as  a  condition  or  not,  in  favor 
of  the  beneficiary  thereof  has  already  been  adverted  to,  ante,  §  951,  and  will  be 
more  fully  considered,  ^os<,  §  1241. 


24  ESTATES    UPON    CONDITION. 

will  hereafter  appear,  a  most  marked  distinction  between 
estates  technically  upon  condition  and  that  class  of  condi- 
tional estates  known  as  mortgages. 

§  966.  Condition  not  affected  by  Change  cf  Ownership.  —  The 
circumstance  of  an  estate  being  subject  to  a  condition  does 
not  affect  its  capacity  of  being  aliened,  devised,  or  of  descend- 
ing, in  the  same  manner  as  an  indefeasible  one,  the  purchaser 
or  whoever  takes  the  estate  by  devise  or  descent  taking  it  sub- 
ject to  whatever  condition  is  annexed  to  it.^ 

§  967.  Quantity  of  Estate  not  affected  by  Condition.  —  Nor 
does  the  existence  of  such  condition  change  the  freehold  or 
chattel  character  of  the  estate  to  which  it  is  annexed.  Thus, 
though  an  estate  for  an  uncertain  period,  which  may  continue 
for  life,  is  a  freehold,  an  estate  to  A  B  for  ninety-nine  years, 
provided  he  live  so  long,  is  still  a  term  for  years,  though  its 
duration  may  be  measured  by  the  length  of  a  life.  And  on 
the  other  hand,  an  estate  to  A  B  for  life,  or  in  fee,  will  be  a 
freehold,  though  there  is  annexed  to  it  a  condition  which  may, 
if  it  happen,  terminate  it  in  a  year  or  any  other  definite 
period  of  time.^ 

§  968.  Reversionary  Nature  of  Right  to  re-enter.  —  From  what 
has  been  said,  it  must  be  plain  that  the  right  which  a  condi- 
tional grantor  of  an  estate  has  to  regain  the  estate  upon  the 
breach  of  the  condition  is  a  present  vested  interest  of  the 
nature  of  a  reversion,  which  he  may,  at  any  time,  convey  to 
his  grantee  upon  condition,  by  release,  or  may  devise  it,  and 
it  is  transmissible  to  his  heirs. 

§  969.  Perpetuities.  —  Nor  is  the  right  to  re-enter  for  con- 
dition broken  subject  to  any  objection  on  the  ground  of  its 
coming  within  the  limit  of  a  perpetuity  which  the  law  does 
not  allow,  although  it  may  not  take  effect  by  the  event  which 
is  to  defeat  the  estate  to  which  the  condition  is  annexed, 
within  the  period  of  time,  beyond  which  an  estate  may  not 
be  originally  limited  to  take  effect.^ 

1  Taylor  v.  Sutton,  15  Ga.  103  ;  Underhill  v.  Sara.  &  W.  E.  R.,20  Barb.  455  ; 
Wilson  V.  Wilson,  38  Me.  18. 

2  2  Flint.  Real  Prop.  232  ;  Ludlow  v.  N.  Y.  &  Harl.  R.  R.,  12  Barb.  440  ; 
Co.  Lit.  42  a. 

8  Brattle  S>[.  Ch.  v.  Grant,  3  Gray,  142  ;  Tobey  v.  Moore,  130  Mass.  448  ; 
Cowell  V.  Springs  Co.,  100  U.  S.  55. 


ESTATES   UPON   CONDITION.  25 

§  970.  Conditions  and  Conditional  Limitations  differentiated.  — 
In  this  and  many  other  respects,  an  estate  upon  condition, 
properly  speaking,  differs  from  what  is  known  as  a  condi- 
tional limitation.  In  either  case,  the  estate  is  a  conditional 
one.  But  in  the  one,  though  the  event  happen  upon  which 
the  estate  may  be  defeated,  it  requires  some  act  to  be  done, 
such  as  making  an  entry,  in  order  to  effect  this.  In  the 
other,  the  happening  of  the  event  is,  in  itself,  the  limit  be- 
yond which  the  estate  no  longer  exists,  but  is  determined  by 
the  operation  of  the  law,  without  requiring  any  act  to  be  done 
by  any  onc.^  In  case  of  a  condition  at  common  law,  the 
grantor  or  his  heirs  alone  can  defeat  the  estate  by  entry  for 
condition  broken.  In  a  conditional  limitation,  the  estate  de- 
termines, ipso  facto,  upon  the  happening  of  the  event,  and  goes 
over  at  once  to  the  grantor  by  reverter,  or  to  the  person  to 
whom  it  is  limited  upon  the  happening  of  such  contingency. ^ 
So  if  the  breach  of  a  condition  be  relieved  against  in  chan- 
cery, or  excused  by  becoming  impossible  by  the  act  of  God, 
the  estate  to  which  it  is  annexed  remains  unimpaired,  whereas 
a  limitation  determines  an  estate  from  whatever  cause  it 
arises.^  This  distinction  may  be  illustrated  by  a  familiar 
example.  A  grant  to  A  B,  provided  she  continues  unmar- 
ried, is  an  estate  upon  condition ;  and  if  she  marries,  nobody 
can  take  advantage  of  it  to  defeat  the  estate  but  the  grantor 
or  his  heirs.  But  a  grant  to  A  B,  so  long  as  she  continues 
unmarried,  is  a  limitation.  The  moment  she  marries,  the 
time  for  which  the  estate  was  to  be  held  has  expired,  and 
the  estate  is  not  technically  defeated,  but  determined.*  So 
the  grant  of  an  estate  until  a  certain  event  happens  is  a  limi- 
tation^ and  good  at  the  common  law,  and  upon  it  a  remainder 
may  be  limited,  provided  the  first  estate  limited  were  not  in 
terms  a  fee  absolute  or  determinable.^    And  sometimes,  where 

1  1  Prest.  Est.  456  ;  id.  54  ;  2  Flint.  Real  Prop.  230-232  ;  Brattle  Sq.  Ch.  v. 
Grant,  3  Gray,  142  ;  2  Bl.  Com.  155  ;  11  Am.  Jur.  42  ;  2  Cruise,  Dig.  37;  Port- 
ington's  Case,  10  Rep.  42  ;  Co.  Lit.  214  b ;  Miller  v.  Levi,  44  N.  Y.  489 ;  Hender- 
son V.  Hunter,  59  Penn.  St.  335,  340. 

2  Att'j'-Gen.  v.  Merrimack  Co.,  14  Gray,  586,  612, 
8  11  Am.  Jur.  43. 

*  2  Flint.  Real  Prop.  230  ;  Portington's  Case,  10  Rep.  42  ;  1  Prest.  Est.  49. 
5  1  Prest.  Est.  54  ;  Fearne,  Rem.  13  and  n.     See  i^os^  §  1535. 


26  ESTATES   UPON    CONDITION. 

the  estate  is,  in  terms,  an  estate  upon  condition,  it  is  con- 
strued into  a  conditional  limitation,  where  it  is  necessary  to 
carry  out  the  purposes  and  intent  of  the  grant.  Thus  a  de- 
vise to  one's  own  heir,  on  condition  that  he  pays  a  sum  of 
money,  and,  for  non-payment,  a  devise  over  to  a  third  person, 
is  held  to  be  a  limitation,  because,  if  construed  to  be  a  condi- 
tion, no  one  could  enter  for  the  breach  and  avoid  the  estate 
but  the  heir  himself.^  And  the  same  rule  applies  wherever 
there  is  a  limitation  over  to  a  third  party  upon  the  failure  of 
the  first  taker  to  perform  the  condition,  as  if  an  estate  be 
granted  by  A  to  B,  upon  condition  that  B  marry  C  within 
two  years,  and  on  failure,  then  to  D  and  his  heirs.  This 
would  be  a  limitation.  And  the  estate  in  both  the  above 
cases  passes  to  the  second  party  without  any  act  done  in 
order  to  put  an  end  to  the  estate  of  the  first  taker.  Whereas^ 
if  it  was  technically  an  estate  upon  condition,  it  would  require 
an  entry  to  be  made  by  the  grantor  in  order  to  defeat  it,  and 
he  might  refuse  to  make  it.^ 

§  971.  Conditional  Limitation,  ho-w  expressed.  —  The  ordi- 
nary technical  words  by  which  a  limitation  is  expressed,  as 
given  in  the  elementary  writers,  relate  to  time.  Such  are 
durante,  dum,  donee,  quousque,  usque,  tamdiu,  and  the  like.^ 
But  it  is  apprehended  that  the  mere  use  of  any  of  these  terms, 
ordinarily  expressive  of  a  condition  or  a  limitation,  would  be 
an  unsafe  test  of  the  true  nature  of  the  estate.  The  word 
proviso  or  "provided,"  itself,  may  sometimes  be  taken  as  a 
condition,  sometimes  as  a  limitation,  and  sometimes  as  a 
covenant.*  Where  A  made  a  lease  for  the  term  of  four  years, 
with  a  proviso  that  if  he  sold  the  estate  and  gave  the  lessee 
sixty  days'  notice,  he  might  terminate  the  lease,  it  was  held 
to  be  a  limitation,  and  not  a  condition,  and  the  estate  was 

1  Wellock  V.  Hammond,  Cro.  Eliz.  204. 

2  2  Flint.  Real  Prop.  231  ;  2  Bl.  Com.  155;  Brattle  Sq.  Ch.  v.  Grant,  3  Gray, 
142  ;  Fifty  Assoc,  v.  Rowland,  11  Met.  99;  Stearns  v.  Godfrey,  16  Me.  158,  160. 

3  Co.  Lit.  235  a  ;  Portington's  Case,  10  Rep.  42;  Henderson  v.  Hunter,  59 
Penn.  St.  335,  340. 

*  Co.  Lit.  203  b.  See  also  Chapin  v.  Harris,  8  Allen,  59 1  ;  Cromwel's  Case, 
2  Co.  72  a.  But  to  create  a  covenant  there  must  be  some  words  also  of  promise 
u.sed;  and  if  the  words  are  only  an  express  condition  they  will  not  be  construed  to 
make  a  covenant.     Blanchard  v.  Detroit  R.  R.,  31  Mich.  43. 


ESTATES   UPON    CONDITION.  27 

determined  by  such  sale  and  notice.^  "If"  may  be  a  word  of 
limitation  as  well  as  of  condition.  A  stranger  may  take  ad- 
vantage of  a  limitation,  but  not  of  a  condition.*  The  only 
general  rule,  perhaps,  in  determining  whether  words  are 
words  of  condition  or  of  limitation,  is  that,  where  they  cir- 
cumscribe the  continuance  of  the  estate,  and  mark  the  period 
which  is  to  determine  it,  they  are  words  of  limitation;  Avhen 
they  render  the  estate  liable  to  be  defeated,  in  case  the  event 
expressed  should  arise  before  the  determination  of  the  estate, 
they  are  words  of  condition.^  Thus  a  parol  letting  of  prem- 
ises to  another,  so  long  as  he  keeps  a  good  school,  is  a  con- 
ditional limitation,  and  no  notice  or  entry  is  necessary  to 
determine  it  if  the  tenant  fail  to  keep  such  a  school.^  The 
distinction  between  condition  and  limitation  is  that  the  latter 
determines  the  estate  of  itself;  the  former,  to  have  that  effect, 
requires  some  act  of  election  on  the  part  of  him  or  his  heirs 
in  whose  favor  the  condition  is  created.^  "A  condition  re- 
spects the  destruction  and  determination  of  an  estate ;  -a  con- 
ditional limitation  relates  to  the  commencement  of  a  new 
one.  A  condition  brings  the  estate  back  to  the  grantor  or 
his  heirs;  a  conditional  limitation  carries  it  over  to  a 
stranger. "  ^ 

§  972.  No  Remainder  after  a  Fee-simple.  —  As  a  fee-simple 
is  the  largest  estate  possible,  the  grantor  of  a  fee-simple  has 
nothing  further  to  grant;  therefore,  there  can  be  no  remainder 
after  a  fee-simple,  nor  can  that  estate  be  a  remainder  which, 
instead  of  coming  in  and  taking  effect  at  the  natural  expira- 
tion of  a  prior  estate,  rises  up  and  cuts  it  short  before  its 
regular  determination.  There  was  no  way,  therefore,  at 
common  law,  by  which  an  estate  could  be  created  to  take 
effect  in  a  stranger  after  a  fee-simple,  nor  upon  the  defeat  of 
a  prior  estate  by  the  breach  of  a  condition.  It  was  not  a  re- 
mainder, nor,  though  the  condition  were  broken,   could  the 

1  Miller  v.  Levi,  44  N.  Y.  489. 

2  Owen  V.  Field,  102  Mass.  90,  105. 

3  1  Prest.  Est.  129. 

4  Ashley  v.  Warner,  11  Gra)',  43. 

5  Owen  V.  Field,  102  Mass.  90,  105  ;  Shep.  Touch.  125. 

6  Watkins,  Conv.  204. 


28  ESTATES   UPON    CONDITION. 

grantee  of  the  second  estate  do  what  was  necessary  in  order 
to  defeat  the  first  so  as  to  give  effect  to  the  second.^ 

§  973.  Conditional  Limitations  and  Perpetuities.  —  But  under 
the  rules  applicable  to  estates  by  devise,  and  those  taking 
their  effect  by  the  doctrine  of  uses,  an  estate  might  be  created 
in  favor, of  A  B  and  his  heirs,  which,  upon  the  happening  of 
some  contingency,  should  determine  by  its  own  limitation, 
and  go  over  to  a  third  person  and  his  heirs.  In  order,  how- 
ever, to  prevent  locking  up  estates  and  rendering  them  in- 
alienable for  an  indefinite  period  of  time,  the  courts  adopted 
a  rule  against  what  are  called  perpetuities,  by  which,  unless 
such  second  estate  shall  certainly  vest  within  the  period  of  one 
or  more  existing  lives,  and  twenty-one  years  and  a  fraction 
afterwards,  the  limitation  of  it  will  be  void  ah  initio.  Now, 
to  apply  these  principles  to  estates  upon  condition  and  condi- 
tional limitations,  if  A  grants  his  estate  to  B  and  his  heirs, 
to  become  void  if  the  tenant  of  the  land  do  some  designated 
act,  whatever  right  there  is  in  respect  to  the  estate,  beyond 
what  is  granted  to  B,  is  reserved  to  A,  and  vested  in  him. 
He  may  devise  it  in  some  of  the  States,  or  it  will  pass  to  his 
heirs ;  and  however  long  it  may  be  before,  if  at  all,  the  event 
may  happen,  for  which  the  estate  granted  may  be  defeated, 
there  is  always  this  vested  interest  in  the  heirs  or  devisees  of 
the  original  grantor  ready  to  be  exercised.  But  if  the  dis- 
position of  A's  grant  had  been  to  B  and  his  heirs  till  some 
contingent  event  should  happen,  and  then  to  C  and  his  heirs, 
or  on  condition  that  if  some  act  should  be  done  or  omitted  by 
B  or  his  heirs,  then  to  C  and  his  heirs,  this  would  be  a  con- 
ditional limitation,  and  as  such  might  be  good.  And  upon 
the  happening  of  the  event,  or  doing  or  omitting  the  act,  the 
estate  in  B  or  his  heirs  would  end,  and  that  in  C  or  his  heirs 
take  effect.  But  in  the  meantime  the  grantor  has  parted  with 
his  estate,  and  it  would  be  impossible  to  tell  in  whom  the 
ultimate  right  to  the  estate  might  vest,  or  whether  it  would 
ever  vest  at  all,  and  therefore  there  could  be  no  conveyance 
or  mode  of  alienation  by  which  an  absolute  title  could  pass 

1  Brattle  Sq.  Ch.  v.  Grant,  3  Gray,  142  ;  1  Prest.  Est.  50  ;  id.  95  ;  3  Prest. 
Abst.  284  ;  4  Kent,  Com.  128  ;  Outland  v.  Bovven,  115  Ind.  150;  s.  c.  17  N.  E. 
Rep.  281. 


ESTATES    UPON    CONDITION.  29 

of  the  estate  limited  to  C  and  his  heirs.  And  if  this  event 
or  act  might  not  happen  within  the  time  prescribed  by  the 
rule  against  perpetuities,  the  limitation  dependent  upon  it 
would  be  void.i 

1  Brattle  S^i- Ch.  y.  Grant,    3  Gray,   142,  148,   149;   Soc.  Tlieol.  Ed.  i;.  Att'y 
Gen.,  135  Mass.  285. 


30  MORTGAGES. 


CHAPTER  XLI. 

MORTGAGES  —  NATURE    AND    FORM    OF   MORTGAGES. 

§  974.  Mortgages  defined. 

975.  Common  law  mortgage. 

976.  Possession  of  premises  under  common  law  mortgage. 

977.  Equity  of  redemption, 

978.  Mortgages  at  law  and  in  equity. 

979.  What  may  be  mortgaged. 

980.  What  constitutes  a  mortgage. 

981.  Indestructibility  of  equity  of  redemption. 

982.  Form  of  mortgage  —  Defeasance. 
98-3.  Existence  of  debt,  how  far  necessary. 

984.  Mortgage  valid  without  personal  obligation. 

98.5.  Deed  absolute  on  its  face  as  a  mortgage. 

986.  Deeds  absolute  on  face  as  fraudulent  conveyances. 

987.  The  defeasance. 

988.  What  agreements  amount  to  defeasances  creating  mortgages. 

989.  Distinction  between  mortgage  and  right  to  repurchase. 

990.  ilortgage,  or  contract  to  reconvey  ?  —  Test. 

991.  The  test,  continued. 

992.  Distinguishing  indicia. 

993.  The  question  one  of  fact. 

994.  Parol  evidence,  when  excluded. 

995.  The  consideration  as  a  test. 

996.  No  defeasance  to  a  stranger. 

997.  Secret  defeasances  and  buna  fide  purchasers. 

998.  Once  a  mortgage  always  a  mortgage. 

999.  Destruction  of  defeasance  ;  boim  fide  purchaser. 

1000.  Agreements  limiting  right  to  redeem. 

1001.  Priority  of  purchase  money  mortgages. 

1002.  Mortgages  to  secure  support. 

§  974.  Mortgages  defined.  —  Mortgages  are  one  form  of  lien 
upon  real  property  to  secure  the  performance  of  some  obliga- 
tion, more  commonly  the  payment  of  money.  As  ordinarily 
understood,  a  lien  upon  land  does  not  imply  an  estate  in  it, 
but  a  mere  right  to  have  it,  in  some  form,  applied  towards 
satisfying  a  claim  upon  it.  The  peculiarity  of  mortgages  is 
that,  while  in  some  States  they  combine  the  character  of  lien 
and  estate,  in  others  they  form  a  lien  only  upon  the  land.^ 

1  Eyall  V.  RoUe,  1  Atk.  165. 


NATURE  AND  FORM  OF  MORTGAGES.  31 

§  975.  Common  Law  Mortgage.  —  A  mortgage  at  Common 
law  may  be  defined  to  be  an  estate  created  by  a  conveyance, 
absolute  in  its  form,  but  intended  to  secure  the  performance 
of  some  act,  such  as  the  payment  of  money  and  the  like,  by 
the  grantor  or  some  other  person,  and  to  become  void  if  the 
act  is  performed  agreeably  to  the  terms  prescribed  at  the 
time  of  making  such  conveyance.  It  is,  therefore,  an  estate 
defeasible  by  the  performance  of  a  condition  subsequent.^ 
The  act  which  is  to  defeat  the  estate  must,  in  order  to  con- 
stitute a  mortgage,  be  an  act  to  be  done  by  the  grantor  or  his 
assigns.^  But  a  mere  bond  or  agreement  to  convey  land  will 
not  constitute  a  mortgage,  unless  given  in  the  way  of  defeas- 
ance,'^ It  does  not,  therefore,  relate  to  the  quantity  of  estate, 
but  to  its  quality  or  circumstances  which  qualify  the  owner- 
ship and  enjoyment  of  property.  Though  conditional  in  its 
character,  it  differs  essentially  from  an  estate  upon  condition 
at  common  law  which  was  considered  in  a  former  chapter, 
both  in  its  purposes  and  in  many  of  its  incidents.  In  respect 
to  estates  upon  condition,  the  estate  vests  in  the  grantee,  sub- 
ject to  be  defeated ;  but  until  defeated  by  act  of  the  grantor, 
the  estate  with  the  possession  and  the  ordinary  incidents  of 
ownership  are  in  the  grantee.  Whereas  a  mortgage  only 
becomes  effectually  an  estate  in  the  grantee,  called  the  mort- 
gagee, by  the  grantor  or  mortgagor  failing  to  perform  the 
condition.* 

§  976.  Possession  of  Premises  under  Common  Lavir  Mort- 
gage. —  The  possession  may  be  in  the  grantor  or  grantee, 
according  to  the  terms  of  the  deed,  though  ordinarily  it  is 
retained  by  the  grantor.  If  there  is  no  provision  inserted  in 
the  deed  as  to  possession,  the  mortgagee  may  enter  and  hold 
the  estate  until  the  condition  is  performed.  But  if  the  con- 
dition is  performed  according  to  its  terms,  the  estate  of  the 
mortgagee  is  ipso  facto  defeated  and  at  an  end.     Although, 

1  Wms.  Real  Prop.  349  ;  Erskine  v.  Townsend,  2  Mass.  493  ;  Lund  v.  Lund, 
1  N".  H.  39 ;  Mitchell  v.  Burnliani,  44  Me.  299  ;  Wing  v.  Cooper,  37  Vt.  169. 

2  Robinson  v.  Robinson,  9  Gray,  447  ;  Gibson  v.  Eller,  13  Ind.  124  ;  Lucas  v. 
Hendrix,  92  Ind.  54  ;  Knowlton  v.  Walker,  13  Wis.  264,  272.     See  post,  §  989. 

8  Dahl  V.  Pross,  6  Minn.  89  ;  Drew  v.  Smith,  7  Minn.  301. 

*  Fay  V.  Cheney,  14  Pick.  399  ;  Brigham  v.  Winchester,  1  Met.  390  ;  Wood  v. 
Trask,  7  Wis.  566. 


32  MORTGAGES. 

by  the  form  of  English  conveyances,  the  mortgagee,  in  such 
a  case,  is  bound  to  reconvey  to  the  mortgagor.^  On  the  other 
hand,  if  the  mortgagor  failed  to  perform  the  required  condi- 
tion, his  estate  was,  by  the  common  law,  wholly  defeated  and 
gone,2  and  the  mortgagee  thereupon  held  the  same  as  absolute 
and  irredeemable.^ 

§  977.  Equity  of  Redemption.  —  In  equity,  however,  the 
right  to  redeem  is  not  lost  until  cut  off  by  decree ;  and  this 
equitable  right  to  redeem  a  mortgaged  estate  after  it  had,  in 
view  of  the  common  law,  been  forfeited  by  a  failure  to  per- 
form the  condition  of  the  mortgage,  gave  to  mortgages  a 
double  aspect  and  a  double  nature,  the  one  created  by  and 
known  to  the  common  law,  the  other  created  by  and  known 
only  to  equity,  —  this  right  of  redeeming,  after  breach  of  the 
condition,  being  what  is  called  a  right  in  equity  of  redemp- 
tion,  or,   in  shorter  terms,   an  equity  of  redemption. 

§  978.  Mortgages  at  Law  and  in  Equity.  —  In  law,  the  mort- 
gagee, as  holding  the  freehold,  may  sue  an  action  of  ejectment 

^  Coote,  Mortg.  2;  Wms.  Real  Prop.  349  ;  id.  351,  n.  ;  Erskine  v.  Townsend, 
2  Mass.  493 ;  Reading  of  Judge  Trowbridge,  8  Mass.  551-554. 

2  Lit.  §  332.  The  nature  of  this  estate  is  expressed  by  the  etymology  of  its 
name,  mort-gage,  the  French  translation  of  the  Latin  vadium  inortuum,  that  is,  a 
dormant  or  dead  pledge,  in  contrast  with  vadium  vivum,  an  active  or  living  one. 
They  were  both  ordinarily  securities  for  the  payment  of  money.  In  the  one  there 
was  no  life  or  active  effect  in  the  way  of  creating  the  means  of  its  redemption  by 
producing  rents,  because,  ordinarily,  the  mortgagor  continued  to  hold  possession 
and  receive  these.  In  the  other,  the  mortgagee  took  possession  and  received  the 
rents  toward  his  debt,  whereby  the  estate  pledged  worked  out,  as  it  were,  its  own 
redemption.  Besides,  in  the  one  case,  if  the  pledge  is  not  redeemed,  it  is  lost  or 
dead  as  to  the  mortgagor  ;  whereas,  in  the  other,  the  pledge  always  survives  to  the 
mortgagor  when  it  shall  have  accou)plished  its  purposes.  Co.  Lit.  205  ;  2  Bl. 
Com.  157.  There  was  besides  these  another  class  of  pledges  of  land,  called  Welsh 
mortgages,  where  the  mortgagee  entered  and  occupied,  and  took  the  rents  as  a 
substitute  for  the  interest  upon  the  sum  loaned,  and  held  until  the  estate  was 
redeemed  by  the  mortgagor's  paying  the  principal.  The  mortgagee  could  neither 
enforce  the  repayment  of  the  debt  nor  the  redemption  of  the  estate,  nor  could  he 
foreclose  it.  1  Powell,  Mortg.  373,  n. ;  Coote,  Mortg.  4.  But  both  the  vivum 
vadium  as  above  described,  and  the  Welsh  mortgage,  have  gone  into  disuse,  leav- 
ing the  security  by  way  of  pledge  of  real  estate  in  the  form  of  a  mortgage  in  common 
and  ordinary  use.  Coote,  Mortg.  4,  5  ;  4  Kent,  Com.  137.  In  Louisiana,  the 
mortgage  of  land  answers  to  the  antichresis  of  the  Roman  law,  the  effect  of  which 
was,  in  most  respects,  like  that  of  an  active  mortgage,  or  vivum  vadium.  Living- 
ston V.  Story,  11  Pet.  351,  388. 

3  Spence,  Eq.  Jur.  601,  602  ;  Story,  Eq.  Jur.  §  1004. 


NATURE    AND    FORM    OF   MORTGAGES.  33 

and  recover  possession  of  the  land  against  the  mortgagor. 
He  may  devise  his  interest  as  real  estate  by  will,  or  it  will 
descend  at  common  law  to  his  heir.  In  equity  the  land  is  a 
pledge;  the  mortgagee  holds  this  only  as  a  security  for  a 
debt,  and  like  the  debt  it  is  an  interest  of  a  personal  nature, 
and  if  he  dies  the  debt  goes  to  his  executor,  who  may  receive 
the  same,  and  oblige  the  heir  to  release  to  the  mortgagor 
without 'being  paid  a  farthing.  ^ 

§  979.  What  may  be  mortgaged.  —  The  interest  of  a  mort- 
gagee may  itself  be  mortgaged,  even  in  thuse  States  where 
the  rights  of  mortgagees  cannot  be  enforced  at  common  law 
by  ejectment.  The  courts  regard  such  a  mortgage  as  some- 
thing more  than  an  assignment  of  a  chose  in  action.  And 
when  mortgaged,  such  interest  will  be  the  subject  of  redemp- 
tion or  foreclosure,  as  the  case  may  be,  and,  if  sold  for  pur- 
poses of  foreclosure,  the  surplus,  if  any,  after  satisfying  the 
lien  of  the  mortgagee  upon  the  mortgage,  will  be  refunded  to 
the  mortgagor. 2  And  an  arrangement  between  the  original 
mortgagor  and  such  assignee,  or  mortgagee  of  the  mortgage, 
to  discharge  the  original  mortgage,  to  the  injury  of  the 
assignor,  the  original  mortgagee,  was  held  void  as  to  him; 
and  he  was  held  entitled  to  recover  the  balance  of  the  origi- 
nal mortgage  debt,  deducting  the  amount  for  which  he  had 
mortgaged  the  mortgage.^  Nor  would  a  foreclosure  of  the 
first  mortgage  by  the  assignee  of  it  in  mortgage  affect  the 
equities  existing  between  the  mortgagor  of  the  mortgage  and 
such  assignee  in  respect  to  the  debt  between  them,  nor  the 
equity  of  redeeming  the  mortgage  thus  mortgaged.*  A  man 
may  make  a  valid  mortgage  of  an  estate  for  life  or  for  years 
belonging  to  him,  as  collateral  security,  as  he  could  of  an 


1  Wms.  Real  Prop.  353,  354. 

2  Graydon  v.  Church,  7  Mich.  36,  59  ;  Henry  v.  Davis,  7  Johns.  Ch.  40  ;  Coffin 
V.  Loring,  9  Allen,  154  ;  Johnson  v.  Blydenburgh,  31  N.  Y.  427,  432. 

8  Slee  j;.  Manhattan  Co.,  1  Paige,  48,  78  ;    Hoyt  v.  Martense,  16  N.  Y.  231  ; 
Cutts  V.  York  Mfg.  Co.,  18  Me.  190,  201  ;  Solomon  v.  Wilson,  1  Whart.  241. 

*  Brown  v.  Tyler,  8  Gray,  135,  138  ;  Montague  v.  B.  &  A.  R.  R.,  124  Mass. 
242,  245.  But  if  after  an  entry  to  foreclose,  efTectual  as  against  the  first  mortgagor, 
the  assignee  remains  in  possession  over  twenty  years  without  payment  or  redemp- 
tion by  the  assignor,  the  right  of  the  latter  to  redeem  is  barred.  Stevens  v.  Dedh. 
Inst.  Sav.,  129  Mass.  547. 
VOL.    11.  —  3 


34  MORTGAGES. 

estate  or  part  of  it  which  he  owned  in  fee.^  If  a  lessee  of 
land  for  a  term  of  years  erect  a  house  upon  the  premises  by 
permission  of  the  owner  in  fee,  and  then  mortgage  the  land 
and  the  house,  it  has  the  effect  of  a  mortgage  of  realty,  and 
it  may  be  foreclosed  against  the  mortgagor.  If  after  such 
foreclosure  another  person  remove  the  house  without  right, 
the  mortgagee  may  maintain  trespass  qu.  cl.  freg.  or  an 
action  on  the  case  for  the  value  of  the  house. ^  The  owner 
or  tenant  of  land  may  mortgage  the  crops  or  fruits  yet  to  be 
grown  upon  it,  or  he  may  mortgage  fixtures  yet  to  be  attached 
to  the  premises,  to  take  effect  when  added. ^  If  one  is  in  pos- 
session of  land  under  a  contract  to  purchase,  he  may  mort- 
gage the  same,  and  his  mortgagee  may  go  on  and  complete 
the  contract  and  take  the  title  to  himself.  And  the  right  to 
redeem  from  such  a  mortgage  is  the  subject  of  foreclosure, 
whereby  the  mortgagee  acquires  the  land  subject  to  the  ven- 
dor's lien  for  the  purchase-money.^  So  land  held  by  right  of 
pre-emption  in  California  is  the  subject  of  mortgage,  but  not 
the  right  itself.  And  a  mortgage  of  any  land  held  under  the 
government  is  good  against  the  mortgagor.^  But  a  mortgage 
by  husband  and  wife  of  the  wife's  interest  as  heir-at-law  to 
her  father's  estate,  while  he  is  still  alive,  to  secure  the  debt 
of  the  husband,  is  void,  it  being  the  mortgage  of  a  mere 
possibility.^ 

§  980.  "What  constitutes  a  Mortgage.  —  Any  conveyance  of 
lands  intended  by  the  parties,  at  the  time  of  making  it,  to  be 
a  security  for  the  payment  of  money  or  the  doing  of  some  pre- 
scribed act,  is  a  mortgage.  Whenever  there  is,  in  fact,  an 
advance  of  money  to  be  returned  within  a  specified  time,  upon 
the  security  of  an  absolute  conveyance,  the  law  converts  it 

1  Lanfair  v.  Lanfair,  18  Pick.  304. 

2  Hagar  v.  Brainard,  44  Vt.  294. 

3  Phila.  W.  &  B.  R.  R.  v.  Woelpper,  64  Penn.  St.  366. 

*  Laughlin  v.  Rraley,  25  Kan.  147  ;  Baker  v.  B.  H.  Col.,  45  111.  264;  Sinclair 
V.  Armitage,  12  N.  J.  Eq.  174,  where  the  agreement  of  purchase  was  b}'  parol. 
Att'y  Gen.  v.  Purmort,  5  Paige,  620,  626  ;  Bull  v.  Sykes,  7  Wis.  449,  where  the 
contract  of  purchase  was  in  writing.  Holbrook  v.  Betton,  5  Fla.  99.  So  unas- 
signed  dower  may  be  mortgaged  in  equity.     Strong  v.  Clem,  12  Ind.  37. 

5  Whitney  v.  Buckman,  13  Cal.  536.  See  Wright  v.  Shumway,  2  Am.  Law 
Reg.  20. 

6  Bayler  v.  Commonwealth,  40  Penn.  St.  37. 


NATURE  AND  FORM  OP  MORTGAGES.  35 

into  a  mortgage  whatever  may  be  the  form  adopted,  or  what- 
ever may  be  the  understanding  of  the  parties. ^  There  may 
be  an  equitable  lien  created  in  favor  of  one,  upon  the  real 
estate  of  another,  by  express  agreement,  for  the  purpose  of 
creating  a  charge  upon  the  same,  for  securing  the  payment  of 
money,  although  not  in  form  a  legal  mortgage,  and  which 
can  only  be  enforced  in  equity.  Such  an  agreement  raises 
a  trust  which  binds  the  estate  to  which  it  relates,  and  all 
who  take  title  thereto,  with  notice  of  such  trust,  can  be  com- 
pelled in  equity  to  fulfil  it.^  Whether  a  given  transaction  is 
a  mortgage  or  not,  and  whether  it  is  or  is  not  valid,  is  a 
matter  of  lex  rei  sitce,  although  the  parties  live  elsewhere,  and 
it  is  to  be  construed  by  the  same  law.^  But  without  stopping 
to  inquire  what  the  requisite  proof  of  such  intention  must  be, 
wherever  it  is  legally  proved  that  a  conveyance  was  made  for 
the  purposes  of  security,  equity  regards  and  treats  it  as  a 
mortgage,  and  of  course  attaches  to  it  the  incidents  of  a 
mortgage.*    And  a  mortgage  is  effectual  to  pass  an  estate  by 

1  Harper's  App.,  64  Penn.  St.  315,  320. 

2  Matter  of  Howe,  1  Paige,  125 ;  Pinch  v.  Anthony,  8  Allen,  536,  539 ;  Delaire 
V.  Keenan,  3  Desauss.  74  ;  Clarke  v.  Sibley,  13  Met.  210;  Daggett  v.  Rankin, 
31  Cal.  321  ;  Margarum  v.  Christie  0.  Co.,  37  Fla.  165  ;  s.  c.  19  So.  Eep.  637  ; 
Hackett  v.  Watts,  138  Mo.  502;  s.  c.  40  S.  W.  Rep.  113;  Cummings  v.  Jackson, 
55  N.  J.  Eq.  805 ;  s.  c.  38  Atl.  Eep.  763. 

3  Goddard  y.  Sawyer,  9  Allen,  78  ;  Sedgwick  v.  Laflin,  10  Allen,  430,  433; 
Cutter  V.  Davenport,  1  Pick.  81. 

*  Co.  Lit.  205  a,  Butler's  note,  96  ;  Laussat's  Fonbl.  Eq.  495,  n.  ;  Hughes  v. 
Edwards,  9  Wheat.  489;  Morris  v.  Nixon,  1  How.  118;  Russell  t;.  Southard, 
1 2  How.  139  ;  Menude  v.  Delaire,  2  Pesauss.  564  ;  Reed  v.  Lansdale,  Hardin,  6  ; 
James  v.  Morey,  2  Cow.  246  ;  Hodges  v.  Tenn.  M.  &  F.  Ins.  Co.,  8  N.  Y.  416  ; 
Bnggs  V.  Fish,  2  Chipm.  100  ;  Bigelow  v.  Topliff,  25  Vt.  273 ;  Westm.  Bk.  v. 
Whyte,  1  Md.  Ch.  Dec.  536  ;  s.  c.  3  id.  508  ;  Wilcox  v.  Morris,  1  Murph.  116  ; 
Yarbrough  v.  Newell,  10  Yerg.  376;  Edrington  v.  Harper,  3  J.  J.  Marsh.  353 ; 
Delahay  v.  McConnel,  4  Scam.  156;  Davis  v.  Stonestreet,  4  Ind.  101;  Steel?;. 
Steel,  4  Allen,  419  ;  Vanderhaize  v.  Hugues,  13  N.  J.  Eq.  244  ;  Gilson  v.  Gilson, 
2  Allen,  115  ;  Flagg  v.  Mann,  2  Sumn.  486,  533  ;  Gibson  v.  Eller,  13  Ind.  124; 
Miami  Ex.  Co.  v.  U.  S.  Bk.,  Wright  (Ohio),  249  ;  Chowning  v.  Cox,  1  Rand.  306  ; 
Parks  V.  Hall,  2  Pick.  211,  per  Wilde,  J.  ;  Conway  v.  Alexander,  7  Cranch, 
218;  Clark  v.  Henry,  2  Cow.  324  ;  Henry  v.  Davis,  7  Johns.  Ch.  40;  Skinner 
V.  Miller,  5  Litt.  84  ;  Wilson  v.  Drumrite,  21  Mo.  325  ;  Cotterell  v.  Long,  20 
Ohio,  464;  Howe  r.  Russell,  36  Me.  115;  Woodworth  v.  Guzman,  1  Cal.  203; 
Rogan  V.  Walker,  1  Wis.  527  ;  English  v.  Lane,  1  Port.  (Ala.)  328 ;  M'Brayer 
V.  Roberts,  2  Dev.  Eq.  75  ;  Hauser  v.  Lash,  2  Dev.  &  B.  Eq.  212 ;  McLanahan  v. 
McLanahan,  6  Humph.  99 ;    Somersworth  Sav.  Bk.   v.  Roberts,   38  N.  H.  22  ; 


36  MORTGAGES. 

way  of  estoppel  in  the  same  manner  as  an  ordinary  deed  of 
grant.  1  But  if  the  terms  of  the  condition  are  void  for  uncer- 
tainty, the  deed  becomes  absolute.^  It  is  not,  however,  neces- 
sary, in  order  to  create  a  mortgage,  that  the  condition  should 
expressly  provide  that  if  it  is  performed  the  deed  shall  be 
void.  The  court  regards  the  substance  rather  than  the  form 
of  expression,  and  gives  effect  to  the  transaction  accord ingly.^ 

§  981.  Indestructibility  of  Equity  of  Redemption.  —  It  is  well 
established,  that  equity  would  regard  as  a  nullity  any  agree- 
ment between  the  parties  that  an  estate  so  conveyed  should 
not  be  redeemable,  or  should  be  redeemable  only  at  a  particu- 
lar time,  or  by  a  particular  person  or  class  of  persons.^ 

§  982.  Form  of  Mortgage  —  Defeasance.  —  In  respect  to  the 
form  of  a  mortgage,  it  is  usual  to  insert  the  terms  upon  which 
the  conveyance  may  be  defeated  in  the  deed  by  which  it  is 
made.  But  this  is  not  necessary.  It  is  sufficient  if  it  be 
done  in  a  separate  instrument  of  defeasance,  made  as  a  part 
of  the  transaction ;  though  courts  disapprove  of  the  latter 
mode,  on  account  of  its  liability  to  lead  to  accident  or  abuse. ^ 
The  condition  in  common  mortgage-deeds  is  usually,  substan- 
tially, a  proviso,  "Nevertheless  that  if  A,  his  heirs,  executors, 
or  administrators,  shall  pay  to  B,  his  executors,  administra- 
tors,  or  assigns,   the  sum  of  ,   with  interest,   by  such  a 

time,  then  this  deed,  as  also  a  certain  promissory  note  of 

Nugent  V.  Riley,  1  Met.  117 ;  Stoever  v.  Stoever,  9  S.  &  R.  434  ;  Campbell  v. 
Linder,  50  S.  C.  169;  s.  c.  27  S.  E.  Rep.  648  ;  Kelton  v.  Brown,  —  Tenn,  Ch.— ; 
s.  c.  39  S.  W.  Rep.  541. 

1  Galveston  R.  R.  v.  Cowdrey,  11  Wall.  459,  481 ;  Williuk  v.  Morris  Canal  Co., 
4  N.  J.  Eq.  377,  402. 

2  Boody  V.  Davis,  20  N.  H.  140  ;  Somersworth  Sav.  Bk.  v.  Roberts,  38  N.  H.  22. 
8  Steel  V.  Steel,  4  Allen,  417  ;  Lanfair  v.  Lanfair,  18   Pick.  299,  304;  Mun-ay 

V.  Walker,  31  N.  Y.  399. 

*  Co.  Lit.  205,  Butler's  note,  96  ;  Wnis.  Real  Prop.  353  ;  Erskine  v.  Townsend, 
2  Mass.  493 ;  Lund  v.  Lund,  1  N.  H.  39  ;  Jaques  v.  Week.s,  7  Watts,  268,  275 ; 
Newcoinb  v.  Bonham,  1  Vern.  7 ;  Henry  v.  Davis,  7  Johns.  Ch.  40  ;  Clark  v. 
Henry,  2  Cow.  324  ;  Miami  Ex.  Co.  v.  U.  S.  Bk.,  Wright  (Ohio),  249  ;  Eaton 
V.  Green,  22  Pick.  526;  Flagg  v.  Mann,  14  Pick.  467  ;  Story,  Eq.  Jur.  §  1019; 
Gillis  V.  Martin,  2  Dev.  Eq.  470  ;  Murphy  v.  Galley,  1  Allen,  107 ;  Shoenberger 
V.  Watts,  10  Am.  Law  Reg.  554. 

5  Decker  v.  Leonard,  6  Lans.  264  ;  Houser  v.  Lamont,  55  Penn.  St.  311  ;  War- 
ren V.  Lovis,  53  Me.  463 ;  Ewart  v.  Walling,  42  III.  453  ;  Brinkman  v.  Jones,  44 
Wis.  498  ;  Honors  v.  Hutchings,  8  Bush,  687. 


NATURE  AND  FORM  OF  MORTGAGES,  37 

even  date,  signed  by  the  said  A,  whereby  he  promises  to  pay 
said  B  the  said  sum  and  interest  at  the  time  aforesaid,  sliall 
both  be  void."  But  a  deed  containing  the  usual  proviso, 
except  the  last  clause,  "then  this  deed,  etc.,  shall  be  void," 
which  was  omitted,  was  held  not  to  constitute  such  a  defeas- 
ance as  to  make  it  a  mortgage,  until  the  same  had  been  re- 
formed by  the  court  by  inserting  a  clause  to  that  effect.  ^  But 
where  the  defeasance  is  by  a  separate  instrument,  it  is  not 
necessary  that  it  should  bear  the  same  date  as  the  deed  itself, 
provided  it  be  delivered  at  the  same  time.  Nor  would  an 
immaterial  discrepancy  in  the  description  of .  the  estate  be- 
tween the  deed  and  the  instrument  of  defeasance  invalidate 
its  effect  as  a  mortgage. ^  And  in  order  to  create  a  mortgage 
at  common  law,  or  what  is  called  a  legal  as  distinguished 
from  an  equitable  mortgage,  it  is  necessary  that  the  instru- 
ment of  defeasance  should  be  of  as  high  a  nature  as  the  deed 
itself  which  is  to  be  defeated.^  And  an  assignment  under 
seal  of  such  instrument  of  defeasance,  together  with  all  right 
of  the  assignor  to  the  land  therein  described,  would  be  a 
good  conveyance  of  the  equity  of  redemption.*  Thus  a  con- 
temporaneous bond  conditioned  to  reconvey,  made  by  gi-antee 
to  grantor,  is  a  sufficient  defeasance.^  And  the  doctrine  may 
be  taken  as  a  general  one,  that  if  several  instruments  are 
made  and  delivered  the  same  day  between  the  same  parties 
in  relation  to  the  same  subject-matter,  they  are  regarded  as 
parts  of  one  instrument,  and  are  to  be  construed  together.^ 

1  Adams  v.  Stevens,  49  Me.  362  ;  Gotllard  v.  Coe,  55  Me.  385.  But  see  Pearce 
V.  "Wilson,  111  Penn.  St.  14  ;  Mellon  v.  Lemnion,  ib.  56. 

2  Brown  v.  Holyoke,  53  Me.  9. 

8  Lund  V.  Lund,  1  N.  H.  39  ;  Bodwell  v.  Webster,  13  Pick.  411;  Flint  v. 
Sheldon,  13  Mass.  443;  Harrison  v.  Trustees,  12  Mass.  455  :  Kelh'  v.  Thompson, 

7  Watts,  401  ;  Eaton  v.  Green,  22  Pick.  526  ;  Flagg  v.  Mann,  14  Pick.  467  ; 
Scott  V.  McFarland,  13  Mass.  309  ;  Day  v.  Dunham,  2  Johns.  Ch.  191  ;  Jaques 
V.  Weeks,  7  Watts,   251  ;    Baker  v.  Wind,  1  Ves.  Sr.  160;    French   v.  Sturdivant, 

8  Me.  246  ;  Richardson  v.  Woodbury,  43  Me.  206  ;  Warren  v.  Levis,  53  Me.  463  ; 
Hill  V.  Edwards,  11  Minn.  22,  28. 

*  Graves  v.  Graves,  6  Gray,  391. 

6  Erskine  v.  Townsend,  2  Mass.  493  ;  Taylor  v.  Weld,  5  Mass.  109  ;  Waters 
V.  Randall,  6  Met.  479  ;  Lane  v.  Shears,  1  Wend.  433  ;  Peterson  v.  Clark,  15 
Johns.  205  ;  Van  Wagner  v.  Van  Wagner,  7  N.  J.  Eq.  27  ;  Marshall  v.  Stewart, 
17  Ohio,  356  ;  Cross  v.  Hepner,  7  Ind.  359  ;  Jackson  v.  Green,  4  Johus.  186 ; 
Woodward  v.  Pickett,  8  Gray,  617  ;  Baxter  v.  Dear,  24  Tex.  17. 

6  Wing  V.  Cooper,  37  Vt.  169,  178. 


38  MORTGAGES. 

In  Georgia,  it  was  held  that  two  mortgages  of  the  same  estate, 
made  the  same  day  to  different  persons,  create  a  tenancy  in 
common,  though  one  is  delivered  two  hours  prior  to  the 
other.  1  And  where  the  grantee  and  grantor  entered  into  an 
indenture,  whereby  the  grantor  bound  himself  in  a  penalty  to 
refund  the  consideration,  and  the  grantee  bound  himself  in  a 
penalty  to  re-deed  the  premises  upon  being  repaid  in  five 
years,  it  was  held  to  be  something  more  than  a  bond  to  re- 
convey,  being  in  effect  a  defeasance  of  the  grantor's  deed 
simultaneously  made,  converting  the  same  into  a  mortgage. ^ 
So  where  A  made  a  deed,  absolute  in  its  terms,  to  B,  and  B, 
at  the  same  time  by  his  agreement,  under  seal,  promised  to 
reconvey  the  land  whenever,  within  five  years,  the  grantor 
should  repay  him  the  sum  of  one  hundred  dollars,  and,  if 
not  paid  within  that  time,  the  agreement  to  be  void,  and  the 
deed  be  absolute  without  any  right  of  redemption,  it  was  held 
to  be  a  mortgage.^  In  Maine,  it  is  requisite  that  the  instru- 
ment of  defeasance  should  be  recorded,  in  order  to  be  valid  to 
change  a  deed  into  a  mortgage  as  against  any  person  except 
the  maker  of  the  defeasance,  his  heirs  and  devisees.'*  In  Bar- 
roilhet  v.  Battelle,  the  mortgage  was  contained  in  a  lease 
between  the  parties,  the  lessee  therein  mortgaging  a  house 
erected  by  him  on  the  premises,  to  secure  the  rent.^  It  is 
also  possible  to  create  an  equitable  mortgage,  valid  as  be- 
tween the  parties  and  as  against  purchasers  with  notice,  by 
an  instrument  void  at  law  to  create  any  estate  in  land,  as  for 
lack  of  a  seal  or  proper  witnesses.^  As  will  appear  hereafter, 
equity  grants  relief  by  decreeing  redemption  in  cases  where 
the  defeasance  is  not  by  deed,   though  courts  of  law  with 

1  Russell  V.  Carr,  38  Ga.  459. 

2  Bayley  v.  Bailey,  5  Gray,  505  ;  Wing  v.  Cooper,  supra. 

3  Murphy  v.  Galley,  1  Allen,  107  ;  Sliarkey  v.  Sharkey,  47  Mo.  543  ;  Robinson 
V.  Willoughby,  65  N.  C.  520. 

■•  Tomlinson  v.  Moumouth  Ins.  Co.,  47  Me.  232. 

5  7  Cal.  450. 

6  Loveu.  Sierra  Nevada  L.  W.  &  M.  Co.,  32  Cal.  639  ;  s.  c.  91  Am.  Dec.  602  ; 
Woods  V.  Wallace,  22  Penn.  St.  171  ;  Gale's  Executors  v.  Morris,  29  N.  J.  Eq. 
222 ;  McQuie  v.  Peay,  58  Mo.  56  ;  Blackburn  v.  Tweedie,  60  Mo.  505  ;  Lake  v. 
Doud,  10  Ohio,  415  ;  Burnet  v.  Boyd,  60  Miss.  627  ;  Miller  v.  R.  &  W.  R.  R.  Co., 
36  Vt.  452  ;  Delaire  v.  Keenan,  3  Desauss.  74  ;  s.  c.  4  Am.  Dec.  604  ;  Margarum 
V.  Christie  0.  Co.,  37  Fla.  165  ;  s.  c.  19  So.  Rep.  637. 


NATURE  AND  FORM  OF  MORTGAGES.  39 

limited  jurisdiction  have  not  such  a  power. ^  But  unless  the 
party  agreeing  to  convey  derives  his  title  from  the  party  with 
whom  his  agreement  is  made,  it  does  not  constitute  a  mort- 
gage. Thus  where  A,  at  the  request  of  B,  a  mortgagor,  pur- 
chased an  outstanding  mortgage  under  which  the  holder  had 
entered  to  foreclose,  under  an  agreement  that  B  might  sell 
the  estate,  and  A  would  convey  it  upon  being  paid  what  he 
had  advanced  to  purchase  the  mortgage,  and  B  suffered  the 
estate  to  foreclose  in  A's  hands,  it  was  held  not  to  constitute 
a  mortgage  between  A  and  B.^ 

§  983.  Existence  of  Debt,  how  far  necessary.  —  As  the  idea 
of  a  mortgage  is  founded  upon  the  conveyance  being  by  the 
way  of  security  for  the  payment  of  money  or  the  like,  there 
must  be  some  evidence  of  a  debt  existing  from  the  grantor  to 
the  grantee,  where  the  intention  is  to  secure  the  payment  of 
money,  in  order  to  construe  such  a  conveyance  as  a  mortgage. 
This  is  ordinarily  effected  by  some  writing,  such  as  a  bond  or 
a  note  given  by  the  grantor  to  the  grantee  for  the  repayment 
of  the  money  loaned  at  the  time  of  making  the  deed.  But 
such  bond  or  note  is  not  essential,  provided  there  is  a  debt 
between  the  parties  capable  of  being  enforced  either  against 
the  debtor  or  the  property  mortgaged.^  It  is  not  essential 
that  the  recital  of  the  instrument  evidencing  the  debt  due  in 
the  deed  should  be,  in  all  respects,  like  the  original;  as  if, 
for  example,  the  note  was  payable  to  A  "or  order,"  and  the 
words  "or  order"  were  omitted  in  the  description.^  So 
where  the  condition  of  a  mortgage  was  to  pay  a  note  for 
$800,  it  was  held  competent  for  the  mortgagor  to  show  it  was 
intended  to  secure  the  mortgagee  for  having  become  surety  in 
another  note  for  the  mortgagor,  which  the  latter  had  paid.^ 

1  Richardson  v.  Woodbury,  43  Me.  206  ;  Eaton  v.  Green,  22  Pick.  526.  But 
now  that  the  courts  of  Massachusetts  have  full  chancery  powers  since  the  statutes  of 
1857,  c.  214,  and  1877,  c.  178,  it  would  seem  that  the  power  need  no  longer  be  thus 
limited.     So  see  Chase  v.  Peck,  21  N.  Y.  581  ;  Paine  v.  Wilson,  74  N.  Y.  348. 

2  Capen  v.  Richardson,  7  Gray,  364.     See  Robinson  v.  Robinson,  9  Gray,  447. 

3  Russell  V.  Southard,  12  How.  139  ;  Jaques  v.  Weeks,  7  Watts,  261,  268,  276  ; 
Smith  V.  People's  Bk.,  24  Me.  185  ;  Wharf  v.  Howell,  5  Binn.  499  ;  Brown  v. 
Dewey,  1  Sandf.  Ch.  56  ;  Rice  v.  Rice,  4  Pick.  349  ;  Mitchell  v.  Burnham,  44  l^Ie. 
286,  condition  to  support  certain  persons ;  Hickox  v.  Lowe,  10  Cal.  197  ;  Whitney 
V.  Buckman,  13  Cal.  536,  539  ;  Brookings  v.  White,  49  Me.  479. 

*  Hough  V.  Bailey,  32  Conn.  288. 
6  Kimball  v.  Myers,  21  Mich.  276. 


40  MORTGAGES. 

And  where  the  deed  described  two  notes  of  $150  each,  and 
one  of  the  notes  produced  in  evidence  was  for  $200,  it  was 
held  competent  for  the  mortgagee  to  show  that  it  was  the  note 
intended  to  be  secured.^  Nor  is  it  necessary  that  the  debt 
intended  to  be  secured  should  be  collectible  in  an  ordinary 
suit  at  law.  As  where  a  wife  who  could  make  a  deed  of  her 
lands,  but  could  not  bind  herself  by  a  promissory  note,  made 
a  mortgage  to  secure  a  note  given  by  her,  it  was  held  that  the 
mortgage  was  good,  though  the  note  was  not  collectible. ^  So 
a  mortgage  by  husband  and  wife  of  wife's  land  for  husband's 
debt  would  be  good.^  And  this  may  be  done  to  secure  a 
future  as  well  as  a  present  indebtedness  of  the  husband.* 
So  a  mortgage  to  secure  an  existing  indebtedness  is  held  to 
be  for  a  valuable  consideration,  and  protected  accordingly.^ 
And  although  both  debt  and  mortgage  may  be  invalid  in  the 
mortgagee's  hands  for  the  illegality  of  the  consideration,  — 
the  sale  of  sj)irituous  liquors,  for  example,  — if  the  mortgage 
is  assigned  bona  fide  to  one  who  is  ignorant  of  this,  it  will  be 
good  in  the  assignee's  hands. ^  Again,  where  the  condition 
of  the  deed  recited  that  the  grantor  was  indebted  to  the 
grantee  "for  moneys  loaned,  and  for  his  liability  on  divers 
bills  of  exchange  and  promissory  notes,"  and  provided  that  if 
he  discharged  them  within  six  months  the  deed  should  be 
void,  it  was  held  to  be  a  sufficient  description  of  the  debt, 
since  it  was  capable  of  being  made  certain  by  parol  evidence.' 
The  law  on  this  point  is  thus  stated  by  Story,  J.  :  "The  ab- 
sence of  such  a  covenant  may,  in  some  cases,  where  the  trans- 

1  Cushman  v.  Luther,  53  N.  H.  562. 

2  Brookings  v.  White,  49  Me.  479  ;  Beals  v.  Cobb,  51  Me.  348  ;  "Wyman  v. 
Brown,  50  Me.  150.  In  Heburn  v.  Warner,  112  Mass.  271,  the  validity  of  such  a 
mortgage  at  law  was  denied,  but  it  was  sustained  in  equity  as  a  charge  on  her  land. 
See,  accordingly.  Van  Cott  v.  Heath,  9  Wis.  516,  525  ;  Story,  Eq.  §  1399  ;  K"eim- 
cewicz  V.  Gahn,  3  Paige,  616,  643,  650  ;  Hodges  v.  Price,  18  Fla,  342. 

8  Ellis  V.  Kinyon,  25  Ind.  134,  136  ;  Hubble  v.  Wright,  23  Ind.  322  ;  Bartlett 
V.  Bartlett,  4  Allen,  440  ;  Gabbert  v.  Schwartz,  69  Ind.  450. 
*  Hoffey  V.  Carey,  73  Penn.  St.  431. 

5  Babcock  f.  Jordan,  24  Ind.  14;  Sharp  v.  Proctor,  5  Bush,  396;  Smith  v. 
Wilson,  2  Met.  (Ky.)  235  ;  Johnston  v.  Ferguson,  id.  503;  Hobson  v.  Hobson, 
8  Bush,  665  ;  Wolf  v.  Van  Metre,  23  Iowa,  397. 

6  Brighani  v.  Potter,  14  Gray,  522  ;  Taylor  v.  Page,  6  Allen,  86. 

■?  Hard  V.  Robinson,  11  Ohio  St.  232.  See  Utley  v.  Smith,  24  Conn.  290,  314; 
Gill  V.  Pinnev,  12  Ohio  St.  38. 


NATURE  AND  FORM  OF  MORTGAGES.  41 

action  assumes  the  form  of  a  conditional  sale,  be  important  to 
ascertain  whether  the  transaction  be  a  mortgage  or  not;  but 
of  itself  it  is  not  decisive.  The  true  question  is,  whether 
there  is  still  a  debt  subsisting  between  the  parties  ca])able  of 
being  enforced  in  any  way,  in  rem  or  in  jjersonam. "  ^  There- 
fore, though  the  holder  of  the  security  were  to  discharge  the 
mortgage,  the  debtor's  liability  for  the  debt  would  remain; 
and,  on  the  other  hand,  if  the  debt  is  barred  by  the  statute 
of  limitations,  or  is  discharged  by  the  insolvency  of  the 
debtor,  the  mortgage  would  still  be  good.^  And  the  doctrine 
to  be  derived  from  the  cases  cited  below  seems  to  be  this, 
that  the  want  of  mutuality,  that  is,  the  liability  of  the 
grantor  to  pay,  as  well  as  of  the  grantee  to  release  upon  be- 
ing paid,  is  only  to  be  regarded  in  determining  whether  the 
transaction  was  originally  a  mortgage  or  not.  If  it  was  in- 
tended as  a  mortgage,  this  want  of  mutuality  would  not  pre- 
vent its  having  that  character,^  though  a  few  cases  maintain 
that  such  mutuality  is  essential  to  constitute  the  transaction 
a  mortgage.* 

§  984.  Mortgage  valid  •without  Personal  Obligation.  —  The 
English  cases,  as  is  generally  done  in  this  country,  hold,  that, 
while  the  absence  of  this  mutuality  is  an  important  circum- 
stance bearing  upon  the  question  of  the  transaction  being  a 
mortgage,  the  giving  of  such  bond  or  mortgage-note  is  not 
essential  to  constitute  it  such.^     Where  there  is  no  such  bond 

1  Flagg  V.  Mann,  2  Sumn.  486,  534  ;  Murphy  v.  Calley,  1  Allen,  107  ;  Rich  v. 
Doane,  35  Vt.  129  ;  Haines  v.  Thompson,  70  Penn.  St.  434. 

■■i  Ball  V.  Wyeth,  8  Allen,  275,  278. 

8  Flint  V.  Sheldon,  13  Mass.  443 ;  Bodwell  v.  Webster,  13  Pick.  411  ;  Brant  v. 
Robertson,  16  Mo.  129  ;  Swetland  v.  Svvetland,  3  Mich.  482;  Mt.  Pleasant  Rk.  v. 
Sprigg,  1  McLean,  178  ;  Miami  Ex.  Co.  i;.  U.  S.  Bk.,  Wright  (Ohio),  252;  Dougherty 
V.  McColgan,  6  Gill  &  J.  275  ;  Conway  v.  Alexander,  7  Cranch,  218;  Glover  v. 
Payn,  19  Wend.  518  ;  Holmes  v.  Grant,  8  Paige,  243  ;  Stejihens  v.  Sherrod,  6  Tex. 
294  ;  Bacon  v.  Brown,  19  Conn.  29  ;  Mills  v.  Darling,  43  Me.  565  ;  Hickox  v. 
Lowe,  10  Cal.  197  ;  Murphy  v.  Callej^,  1  Allen,  107  ;  Flagg  v.  Mann,  14  Pick. 
467,  479. 

4  Chase's  Case,  1  Bland,  Ch.  206  ;  Reading  v.  Weston,  7  Conn.  143  ;  Low  v. 
Henry,  9  Cal.  538,  required  the  intention  of  the  parties  to  make  it  a  mortgage  to 
appear  in  express  terms  of  the  deed,  if  this  mutuality  did  not  exist  in  the  way  of  a 
note  or  bond. 

°  Floyer  v.  Lavington,  1  P.  Wras.  2G8  ;  Lawley  v.  Hooper,  3  Atk.  280  ;  Coote, 
Mortg.  12  ;  Ring  v.  King,  3  P.  Wms.  358  ;  Mellor  v.  Lees,  2  Atk.  494  ;  Exton  v. 
Greaves,  1  Vern.  138  ;  Goodman  v.  Griersou,  2  Ball  &  B.  274. 


42  MORTGAGES. 

or  note  given  by  the  grantor,  nor  any  covenant  to  repay,  in 
the  deed,  but  a  proviso  is  inserted  that  if  the  grantor  pays, 
etc.,  by  a  certain  day,  the  deed  is  to  be  void,  a  question  has 
been  made  whether  the  grantee  has  thereby  any  other  remedy 
against  the  grantor  to  recover  the  money  loaned  than  by  en- 
forcing the  mortgage  upon  the  land.  And  it  seems  now  to 
be  settled  that  he  has  no  personal  claim  for  the  money  upon 
the  mortgagor.  1  But  if  the  instrument  constituting  the  mort- 
gage acknowledges  the  existence  of  a  debt  to  the  mortgagee, 
for  the  payment  of  which  the  conveyance  is  made  as  security, 
the  mortgagee  may  sue  for  the  same  in  assumpsit  without 
resorting  to  the  mortgage.  ^  It  was  held  in  New  York,  that 
if  a  parent  makes  a  mortgage  to  a  child  conditioned  to  pay 
him  a  certain  sum  out  of  his  estate,  it  would  be  valid  and 
effectual,  and  may  be  enforced  by  foreclosure,  if  it  can  be 
done  without  interfering  with  the  rights  of  creditors.^ 

§  985.  Deed  absolute  on  its  Face  as  a  Mortgage,  —  In  appar- 
ent conflict  with  the  statute  of  frauds,  it  is  now  well  settled 
law  that  a  deed  absolute  on  its  face,  if  delivered  with  the 
intention  of  creating  a  security  for  the  payment  of  money,  is 
in  fact  a  mortgage,  and  that  such  intention  may  be  shown  by 
parol  evidence.*     If  one  with  notice  purchase  of  the  mort- 

1  Briscoe  v.  King,  Cro.  Jac.  281;  Tooms  v.  Chandler,  3  Keble,  454;  SufBeld  v. 
Baskervil,  2  Mod.  36 ;  Howell  v.  Price,  2  Veni.  701 ;  Floyer  v.  Lavington,  1  P. 
Wms.  268  ;  Salisbury  v.  Philips,  10  Johns.  57  ;  Drummond  v.  Pdchards,  2  Munf. 
337  ;  Hunt  v.  Lewin,  4  Stew.  &  P.  138  ;  Elder  v.  Rouse,  15  Wend.  218  ;  Conway 
V.  Alexander,  7  Cranch,  218  ;  1  Powell,  Mortg.  61,  n.,  774  ;  Scott  v.  Fields, 
7  Watts,  360  ;  Tripp  ;;.  Vincent,  3  Barb.  Ch.  613  ;  Ferris  v.  Crawford,  2  Denio, 
595  ;   Piatt,  Gov.  37  }  Hills  v.  Eliot,  12  Mass.  26. 

2  Yates  V.  Aston,  4  Q.  B.  182  ;  Elder  v.  Rouse,  15  Wend.  218.  See  Goodwin 
V.  Gilbert,  9  Mass.  510. 

3  Bucklin  v.  Bucklin,  1  Abb.  (N.  Y.)  242,  where  the  mortgage  was  made  to  a 
trustee  in  favor  of  an  infant  child. 

*  Bragg  V.  Massie,  38  Ala.  89 ;  English  v.  Lane,  1  Port.  328  ;  Locke  v.  Palmer, 
26  Ala.  312  ;  Bryan  v.  Cowart,  21  Ala.  92  ;  Brantley  v.  West,  27  Ala.  542  ;  West 
V.  Hendrix,  28  Ala.  226 ;  Parish  v.  Gates,  29  Ala.  254  ;  Crews  v.  Threadgill,  35  Ala. 
334  ;  Wells  v.  Morrow,  38  Ala.  125  ;  Phillips  v.  Croft,  42  Ala.  477  ;  Blakemore  v. 
Byrnside,  7  Ark.  505  ;  Johnson  v.  Clark,  5  Ark.  321 ;  Scott  v.  Henry,  13  Ark.  112  ; 
Jordan  v.  Fenno,  id.  593;  McCarron  v.  Cassidy,  18  Ark.  34;  Porter  v.  Clements, 
3  Ark.  364;  Pierce  w.  Robinson,  13  Cal.  116;  Johnson  v.  Sherman,  15  id.  287  ; 
Lodge  V.  Turman,  24  id.  385  ;  Kuhn  ;>.  Rumpp,  46  id.  299  ;  Taylor  v.  McLean,  64 
id.  513  ;  Washburn  v.  Merrills,  1  Day,  139  ;  Benton  y.  Jones,  8  Conn.  186  ;  French 
V.  Burns,  35  Conn.  359  ;  Chaires  v.  Brady,  10  Fla,  133  ;  Neubert  v.  ilassman,  37 


NATURE  AND  FORM  OF  MORTGAGES.  43 

gagee  holding  a  deed  absolute  in  its  terms,  he  holds  the 
estate  subject  to  redemption  by  the  mortgagor  or  his  assigns.^ 

Fla.  91  ;  s.  c.  19  So.  Eep.  625  ;  Preschbaker  v.  Feaman,  32  111.  475  ;  Sutplien  v. 
Cushman,  35  111.  186  ;  Price  v.  Karnes,  59  111.  276  ;  Klock  v.  Walter,  70  111.  416; 
Westlake  v.  Horton,  85  111.  228  ;  Conwell  v.  Evill,  4  Blackf.  67  ;  Smith  v.  Parks, 
22  Ind.  59  ;  Hayworth  v.  Worthiiigton,  5  Blackf.  361  ;  Graham  v.  Graham,  55 
Ind.  23  ;  Herron  v.  Herron,  91  Ind.  278  ;  Landers  v.  Beck,  92  Ind.  49;  Trucks  v. 
Lindsey,  18  Iowa,  504  ;  Holliday  v.  Arthur,  25  Iowa,  19  ;  Key  v.  McCleary,  id. 
191 ;  Crawford  v.  Taylor,  42  Iowa,  260  ;  Moore  v.  Wade,  8  Kan.  380  ;  McDonald 
V.  Graham,  30  Kan.  170  ;  s.  c.  2  Pac.  Rep.  507  ;  Skinner  v.  Miller,  5  Litt.  84  ; 
Lindley  v.  Sharp,  7  T.  B.  Moii.  248  ;  Edrington  v.  Harper,  3  J.  J.  Marsh.  353  ;  Cook 
i;.  Collyer,  2  B.  Mon.  71  ;  Thomas  v.  McCormack,  9  Dana,  109  ;  Reed  v.  Reed,  75  Me. 
264  ;  Bank,  etc.  v.  Whyte,  1  Md.  Ch.  Dec.  536  ;  s.  c.  3  Md.  Ch.  Dec.  508  ;  Wat- 
kins  V.  Stockett,  6  Har.  &  J.  435  ;  Farrell  v.  Bean,  10  Md.  217  ;  Artz  v.  Grove,  21 
Md.  456.  But  the  evidence  is  only  competent  to  show  fraud  or  mistake.  Ibid. ;  and 
see  Baugher  v.  Merryman,  32  Md.  185  ;  Stackpole  v.  Arnold,  11  Mass.  27  ;  Flint  v. 
Sheldon,  13  Mass.  443  ;  Flagg  v.  Mann,  14  Pick.  467  ;  Hunt  v.  Maynard,  6  Pick. 
489  ;  Bodwell  v.  Webster,  13  Pick.  411  ;  Eaton  v.  Green,  22  Pick.  526  ;  Lincoln  v. 
Parsons,  1  Allen,  388  ;  Coffin  v.  Loring,  9  Allen,  154  ;  Campbell  v.  Dearborn,  109 
Mass.  130  ;  McDonough  v.  Squire,  111  Mass.  217;  Swetland  v.  Swetland,  3  Mich. 
482;  Wadsworthr.  Loranger,  Harringt.  Ch.  113  ;  McClane  v.  White,  5  Minn.  178, 
189;  Holton  v.  Meighen,  15  Minn.  69;  Weide  v.  Gehl,  21  Minn.  449;  Vasser  r. 
Yasser,  23  Miss.  378  ;  Anding  v.  Davis,  38  Miss.  574  ;  Weathersly  v.  Weathersly, 
40  Miss.  462;  Watson  v.  Dickens,  12  Sin.  &  M.  608;  Klein  v.  McNamara,  54 
Miss.  90  ;  Hogel  v.  Lindell,  10  Mo.  483  ;  Tibeau  v.  Tibeau,  22  Mo.  77  ;  Slowey  v. 
McMurray,  27  Mo.  113  ;  O'Neil  v.  Cappelle,  62  Mo.  202  ;  Mclntyre  v.  Humphreys, 
1  Hoff.  Ch.  31  ;  Despard  v.  Walbridge,  15  N.  Y.  374;  Slee  v.  Manhattan  Co., 
1  Paige,  48  ;  Horn  v.  Keteltas,  46  N.  Y.  605  ;  Garnsey  i-.  Rogers,  47  N.  Y.  233,  238  ; 
Carr  v.  Carr,  52  N.  Y.  251,  258  ;  Meehan  v.  Forrester,  id.  277  ;  Odell  v.  Montross, 
68  N.  Y.  499  ;  Crane  v.  Bonnell,  2  N.  J.  Eq.  264  ;  Youle  v.  Richards,  1  IST.  J.  Eq. 
534  ;  Lockerson  v.  Stillwell,  13  N.  J.  Eq.  357  ;  Hogan  v.  Jaques,  19  N.  J.  Eq. 
123  ;  Sweet  v.  Parker,  22  N.  J.  Eq.  453  ;  McDonald  v.  McLeod,  1  Ired.  Eq.  221  ; 
Glisson  V.  Hill,  2  Jones,  Eq.  256  ;  Sellers  v.  Stalcup,  7  Ired.  Eq.  13  ;  Elliott  v. 
Maxwell,  id.  246 ;  Blackwell  v.  Overby,  6  Ired.  Eq.  38 ;  Steel  v.  Black,  3  Jones, 
Eq.  427  ;  Gregory  v.  Perkins,  4  Dev.  50  ;  Miami  Ex.  Co.  v.  U.  S.  Bk. ,  Wright, 
252  ;  Cotterell  v.  Long,  20  Ohio,  464  ;  Hurford  v.  Harned,  6  Or.,  362  ;  Kinney 
V.  Heatley,  13  Or.  35  ;  s.  c.  7  Pac.  Rep.  359 ;  Hiester  v.  Maderia,  3  W.  &  S.  384  ; 
Reitenbaugh  v.  Ludwick,  31  Penn.  St.  131  ;  Todd  v.  Campbell,  32  Penn.  St.  250  ; 
Maffitt  V.  Rynd,  69  Penn.  St.  380  ;  Fessler's  App.,  75  Penn.  St.  483 ;  Umbenhower 
V.  Miller,  101  Penn.  St.  81.  But  by  Act  June  8,  1881,  p.  84,  a  written  defeasance 
is  required.  Before  that  act  the  proof  to  convert  a  deed  into  a  mortgage  had  to  be 
clear,  and  leave  no  doubt.  Lance's  App.,  112  Penn.  St.  456  ;  Nichols  v.  Reynolds, 
1  R.  I.  30  ;  Arnold  v.  Mattison,  3  Rich.  Eq.  153 ;  Brown  v.  Wright,  4  Yerg.  57  ; 
Overton  v.  Bigelo^,  3  Yerg.  513  ;  Lane  v.  Dickerson,  10  Yerg.  373  ;  Hinson  v. 
Partee,  11  Humph.  587  ;  Ruggles  v.  Williams,   1  Head,   141  ;   Nichols  v.  Cabe, 


1  Reigard  v.  Neil,    38  111.   400  ;    Holliday  v.  Arthur,   25    Iowa,    19  ;  Key  v. 
McCleary,  25  Iowa,  191. 


44  MORTGAGES. 

But  a  bona  fide  purchaser  from  the  grantee  in  such  a  deed, 
not  knowing  it  to  be  a  mortgage,  would  hold  the  estate  by  an 
absolute  title. ^  In  England,  it  is  held  that  parol  evidence  is 
competent  to  show  that  a  conveyance  was  made  by  the  way  of 
security  only.^  And  such  seems  to  be  the  rule  in  general  in 
courts  of  equity,  where  deeds  are  absolute  upon  their  face.^ 
Thus,  in  Maine,  while  the  rule  was  recognized  as  a  settled 
doctrine  of  equity,*  the  courts  have  only  been  able  to  apply 
it  since  receiving  full  equity  jurisdiction  by  a  recent  statute.^ 
But  in  Georgia  and  New  Hampshire  such  evidence  is  pre- 
cluded by  statute.^  In  Michigan,  a  distinction  is  made  be- 
tween a  holding  of  land  under  an  absolute  deed  given  by  way 
of  security  for  a  loan  and  a  mortgage.  Such  a  holding  is 
regarded  as  being  that  of  an  agent,  and  the  measure  of  his 
liability  for  rents  and  the  like  is  that  of  an  agent  only.'  In 
North  Carolina,  if  a  deed  intended  to  be  a  security,  but  ab- 
solute in  its  terms,  is  recorded,  it  would  be  postponed  to  a 
mortgage  in  proper  form  subsequently  recorded,  since  the 
record  of  the  first  would  not  show  the  true  transaction.^     It 

3  Head,  92  ;  Stampers  v.  Johnson,  3  Tex.  1 ;  Carter  v.  Carter,  5  Tex.  93  ;  Hannaj' 
u.  Thompson,  14  Tex.  142  ;  Grooms  u.  Rust,  27  Tex.  231  ;  Gibbs  v.  Penny,  43  Tex. 
560;  Catlett  v.  Starr,  70  Tex.  485  ;  s.  c.  7  S.  W.  Rep.  844;  Baxter  u.  Willey,  9  Vt. 
276;  Wright  u.  Bates,  13  Vt.  341  ;  Hyndmau  v.  Hyndman,  19  Vt.  9  ;  Wing  v. 
Cooper,  37  Vt.  169;  Hills  v.  Loomis,  42  Vt.  562  ;  Ross  v.  Norvell,  1  Wash.  14  ; 
Thompson  v.  Davenport,  id.  125  ;  Robertson  v.  Campbell,  2  Call,  421 ;  King  v. 
Newman,  2  Munf.  40  ;  Bird  v.  Wilkinson,  4  Leigh,  266  ;  Snavely  v.  Fickle,  29 
Gratt.  27  ;  Rogan  v.  Walker,  1  Wis.  527  ;  Fairehild  v.  Rassdall,  9  Wis.  379, 
391;  Kent  v.  Lasley,  24  Wis.  654;  Wilcox  v.  Bates,  26  Wis.  465;  Wilson  v. 
Richards,  1  Neb.  342  ;  Deroin  v.  Jennings,  4  Neb.  97 ;  Saunders  v.  Stewart,  7  Nev. 
200  ;  Russell  v.  Southard,  12  How.  139,  148  ;  Babcock  v.  Wyman,  19  How.  289  ; 
Sprigg  V.  Mt.  Pleasant  Bk.,  14  Pet.  201  ;  Peugh  v.  Davis,  96  U.  S.  332;  Title 
Guar.  &  Trust  Co.  v.  Northern  Counties  I.  T.,  73  Fed.  Rep.  931 ;  Klinck  v.  Price, 

4  W.  Va.  4. 

1  Conner  w.  Chase,  15  Vt.  764. 

2  Coote,  Mortg.  24. 

3  Story's  E(|.  §  1018  ;  U.  M.  L.  I.  Co.  v.  White,  106  111.  67. 

*  Woodman  v.  Woodman,  3  Me.  350  ;  Thomaston  Bk.  v.  Stimpson,  21  ile.  195  ; 
Howe  V.  Russell,  36  Me.  115  ;  Richardson  v.  Woodbury,  43  Me.  206. 

5  Act  1874,  c.  175  ;  Reed  v.  Reed,  75  Me.  264,  where  the  doctrine  declared  in 
Richardson  v.  Woodbury,  supra,  that  in  such  a  case  a  resulting  trust  arose  in  favor 
of  the  grantor   was  denied. 

6  Ga.  Code,  1895,  §  2725;  N.  H.  Pub.  Stat.  1901,  c.  139,  §  2. 
'  Bernard  v.  Jennison,  27  Mich.  230. 

8  Gregory  v.  Perkins,  4  Dev.  50  ;  Halcomb  v.  Ray,  1  Ired.  340. 


NATURE  AND  FORM  OF  MORTGAGES.  45 

is  not  competent  to  show  by  parol  that  what  purports  to  be  a 
mortgage-deed  is,  in  fact,  an  absolute  one;^  nor,  if  one  abso- 
lute in  terms  has  been  given  as  security  for  one  debt,  is  it 
competent  to  show  that  it  is  a  security  for  an  additional  sum 
to  that  originally  agreed  upon.^ 

§  986.  Deeds  absolute  on  Face  as  Fraudulent  Conveyances.  — 
[The  estate  in  the  land  remaining  in  the  mortgagor  is  sub- 
ject to  levy  and  sale  upon  execution.  The  natural  result  of 
a  mortgage  absolute  on  its  face,  executed  by  a  failing  debtor, 
is  to  mislead  his  creditors,  thereby  hindering  and  delaying 
them  in  the  enforcement  of  their  claims.  Such  a  mortgage 
is  a  fraud  on  the  part  of  the  mortgagor  ^  and  is  void  as  against 
creditors,  although  the  mortgagee  paid  a  valuable  considera- 
tion, unless  he  took  without  notice*] 

§  987.  The  Defeasance.  —  The  agreement,  whether  by  parol 
or  in  writing,  which  is  relied  on  to  operate  as  a  defeasance, 
must  form  a  part  of  the  original  transaction,  though,  if  in 
writing,  it  is  not  essential  that  it  should  be  reduced  to  writ- 
ing at  the  time.^  If  executed  afterwards,  in  pursuance  of 
such  an  agreement,  it  will  be  regarded  as  if  it  formed  a  part 
of  the  original  transaction.^  Thus  where  a  deed  was  made  in 
July,  1845,  and  in  July,  1846,  the  grantee  gave  the  grantor 
a  bond,  reciting  that  the  deed  had  been  made  to  secure  a 
loan,  and  conditioned  to  reconvey  upon  payment  of  a  certain 
sum,  it  was  held  to  constitute  a  mortgage.'^  So  even  though 
the  deed  and  the  defeasance  bear  different  dates,  they  will 
constitute  a  mortgage  if  delivered  together.^    And  where  the 

1  Wing  V.  Cooper,  37  Vt.  169. 

2  Stoddard  v.  Hart,  23  N.  Y.  556. 

8  Lukeus  V.  Qird,  6  Wall.  78  ;  Campbell  v.  Davis,  85  Ala.  56  ;  8.  c.  4  So.  Rep, 
140. 

*  Neubert  v.  Massman,  37  Fla.  91  ;  s.  C.  19  So.  Rep.  625. 

6  Teal  V.  Walker,  111  U.  S.  242. 

6  Umbenhower  v.  Miller,  101  Penn.  St.  71. 

^  Montgomery  u.  Chadwick,  7  Iowa,  114,  132.  See  also  Reitenbaugh  v.  Lud- 
wick,  31  Peun.  St.  131  ;  Wilson  v.  Shoenberger,  id.  295. 

8  Lund  V.  Lund,  1  IST.  H.  39  ;  Harrison  v.  Trustees,  etc.,  12  Mass.  456  ;  Blaney 
V.  Bearce,  2  Me.  132  ;  Colwell  v.  Woods,  3  Watts,  188  ;  Kelly  v.  Thompson, 
7  Watts,  401  ;  Bryan  v.  Cowart,  21  Ala.  92  ;  Swetland  v.  Swetland,  3  Mich.  482  ; 
Freeman  v.  Baldwin,  13  Ala.  246  ;  Bennock  v.  Whipple,  12  Me.  346  ;  Lovering 
V.  Fogg,  18  Pick.  540  ;  Reitenbaugh  v.  Ludwick,  31  Penn.  St.  131 ;  Bodwell  v. 
Webster,  13  Pick.  411 ;    Newhall  v.  Burt,   7  Pick.  157  ;    Scott  v.  McFarland,  13 


46  MORTGAGES. 

grantee,  at  the  time  of  the  making  of  the  deed,  agreed  to  exe- 
cute a  defeasance  to  the  grantor,  and  did  so,  though  at  a 
subsequent  time,  it  was  held  to  retroact  so  as  to  create  a 
mortgage,  if  the  grantee  in  the  mean  time  had  done  nothing 
to  change  the  rights  of  the  parties.^  If  there  is  any  question 
as  to  the  time  of  executing  the  two  papers,  or  of  malting  the 
agreement  of  defeasance,  the  burden  of  proof  is  on  the  one 
who  sets  it  up  as  such.^  And  in  showing  this  he  may  resort 
to  parol  evidence,  and  he  may  also  show,  in  the  same  way, 
that  a  defeasance  executed  at  a  subsequent  time  was  part  of 
the  original  agreement.^  The  converse  of  the  proposition 
above  made  is  equally  true,  that  if  the  agreement  or  instru- 
ment offered  to  establish  a  defeasance  be  entered  into  subse- 
quent to  the  principal  deed,  and  not  in  pursuance  of  the 
original  agreement,  it  will  not  constitute  a  mortgage,*  though 
in  some  cases  courts  have  been  inclined  to  hold  that  a  defeas- 
ance will  relate  back  to  the  time  of  making  the  original  deed.^ 
So  if  a  defeasance  or  an  agreement  to  reconvey  on  payment  of 
money  be  written  upon  the  back  of  the  deed,  though  not  dated, 
it  will  be  presumed  to  be  of  a  simultaneous  date,  and  make  it 
a  mortgage.^ 

§  988.  What  Agreements  amount  to  Defeasances  creating  Mort- 
gages.—  In  respect  to  what  will  be  sufficient  in  form  to  constitute 
a  defeasance  in  equity,  it  has  been  held  that  any  agreement  in 
writing  is  sufficient.^     But  to  give  a  defeasance  effect,  it  must 

Mass.  309;  Harden  v.  Babcock,  2  Met.  99  ;  Hale  v.  Jewell,  7  Me.  4-35.  By  statute 
of  Maine,  they  must  be  executed  at  the  same  time,  or  be  part  of  the  same  trans- 
action.    1857,  p.  563. 

1  Lovering  v.  Fogg,  18  Pick.  540;  Coffin  v.  Loring,  9  Allen,  154. 

2  Holmes  v.  Grant,  8  Paige,  243. 

3  Reitenbaugh  v.  Ludwick,  31  Penn.  St.  131. 

*  Lund  V.  Lund,  1  N.  H.  39  ;  Swetland  i;.  Shetland,  3  Mich.  482 ;  Kelly  v. 
Thompson,  7  Watts,  401 ;  Bryan  v.  Cowart,  21  Ala.  92  ;  2  Crabb,  Real  Prop.  847. 

5  Scott  V.  Henry,  13  Ark.  112  ;  Crane  v.  Ronnell,  2  N.  J.  Eci-  264.  See  Reiten- 
baugh V.  Ludwick,  31  Penn.  St.  131. 

6  Perkins  v.  Dibble,  10  Ohio,  433 ;  Stocking  v.  Fairchild,  5  Pick.  181  ;  Bald- 
win V.  Jenkins,  23  Miss.  206  ;  Whitney  v.  French,  25  Vt.  663  ;  Brown  v.  Nickle, 
6  Penn.  St.  390.  But  it  was  held  in  New  Hampshire  that  it  must  first  be  shown 
that  the  defeasance  was  upon  the  deed  when  executed.  Emerson  v.  Murray,  4  N.  H. 
171. 

^  Read  v.  Gaillard,  2  Desauss.  552 ;  Hicks  v.  Hicks,  5  Gill  &  J.  75  ;  Batty  v. 
Snook,  5  Mich.  231  ;  Cross  v,  Hepner,  7  Ind.  359  ;    Breckenridge  v.  Auld,  1  Rob. 


NATURE  AND  FORM  OF  MORTGAGES.  47 

be  delivered  ;  and  where  it  was  deposited  with  a  third  party  to 
be  delivered  upon  a  condition  wliich  the  grantor  never  per- 
formed, it  was  held  not  to  constitute  a  mortgage,^  Among  the 
cases  bearing  upon  the  question  of  what  will  constitute  a  suffi- 
cient agreement  to  give  a  deed  the  character  of  a  mortgage,  are 
the  following :  An  agreement  was  made  under  seal  that  the 
deed  should  be  deposited  with  a  third  person,  to  be  delivered  to 
the  grantee  if  the  grantor  failed  to  repay  a  sum  loaned  him  by 
a  certain  time.  It  was  held  to  be  a  mortgage.^  So  an  agree- 
ment that  the  title  should  not  vest  till  the  purchase-money  was 
paid.^  So  a  deed  with  a  condition  annexed,  that,  if  the  grantor 
paid  certain  legacies  charged  upon  other  lands,  it  should  be 
void.*  So  a  deed  conditioned  to  become  void  unless  a  certain 
amount  is  paid  by  a  certain  day  is,  in  effect,  a  deed  of  mort- 
gage from  the  debtor  to  the  creditor.^  A  contract  to  convey, 
in  consideration  of  a  certain  sum,  with  a  bond  to  reconvey  upon 
payment,  is  a  mortgage."  An  indenture  of  lease,  reciting  that 
the  lease  is  made  as  security  to  the  lessee  for  his  support  by  the 
lessor,  was  held  to  be  a  mortgage.'^  So  a  lease  where  the  pay- 
ment of  the  rent  for  the  full  term  was  acknowledged,  and  the 
lessee  covenanted  to  reconvey  upon  being  repaid  the  same,  was 
held  to  be  a  mortgage.^  Where  the  sale  was  for  the  full  value, 
but  with  an  agreement  on  the  part  of  the  grantee,  that  if  he 
could,  within  a  certain  time,  sell  for  more  than  the  purchase- 
money,  with  interest,  the  surplus  should  be  paid  over  to  the 
grantor,  the  transaction  was  held  a  mortgage.^  So  if  the 
grantee  covenant  that  he  will  sell  within  a  certain  time  at 
the  best  price,  and  pay  over  the  residue.^*^  Though  it  was  agreed 
that  if  the  grantor,  a  debtor,  could  find  a  purchaser  within  one 

(Va.)148;  Belton  v.  Avery,  2  Root,  279 ;  Marshall  t;.  Stewart,  17  Ohio,  356; 
2  Greenl.  Cruise,  68,  n. 

1  Bickford  v.  Daniels,  2  N.  H.  71. 

2  Carey  v.  Rawson,  8  Mass.  159. 

8  Piigh  V.  Holt,  27  Miss.  461  ;  Carr  v.  Holbrook,  1  Mo.  240. 
*  Stewart  v.  Hutchins,  13  Wend.  485. 
^  Austin  V.  Downer,  25  Vt.  558. 
8  Harrisons.  Lemon,  3  Blackf.  51. 

7  Lanfair  y.- Lanfair,  18  Pick.  299  ;  Gilson  v.  Gilson,  2  Allen,  115. 

8  Nugent  V.  Riley,  1  Met.  117. 

9  Gillis  V.  Martin,  2  Dev.  Eq.  470. 
1"  Ogden  V.  Grant,  6  Dana,  473. 


48  MORTGAGES. 

year,  he  should  be  entitled  to  the  surplus  which  he  would  obtain 
beyond  the  amount  which  had  been  paid  him  by  discharging  his 
debt,  and  which  was  a  fair  value  of  the  land,  it  was  held  not  to 
be  a  mortgage.^  So  where  a  grantee,  at  the  time  of  the  mak- 
ing of  the  deed,  binds  himself  to  reconvey  or  pay  a  certain  sum 
of  money  to  the  grantor,  at  the  option  of  the  obligor,  it  is  not  a 
defeasance,  and  does  not  constitute  a  mortgage.^ 

§  989.  Distinction  between  Mortgage  and  Right  to  repurchase.  — 
It  is  sometimes  difficult  to  draw  the  line  of  distinction  between 
a  transaction  which  constitutes  a  mortgage,  and  one  where 
there  is  a  mere  right  to  repurchase  on  the  part  of  the  grantor 
upon  certain  terms.  The  difference  in  the  effect  of  these  is 
exceedingly  important.  In  the  one,  equity  interposes,  and,  dis- 
regarding the  question  of  time,  grants  relief  after  a  failure  to 
perform,  by  giving  opportunity  to  do  so  at  another  time.  In 
the  other,  the  law  only  deals  with  the  contract,  and  requires 
the  party  who  would  avail  himself  of  the  benefit  of  it  to  exe- 
cute his  part  with  precision  and  punctuality.  In  the  case  of  a 
mere  right  to  repurchase  upon  the  payment  of  a  certain  sum  at 
a  certain  time,  if  there  be  a  failure  to  comply  strictly,  all  right 
to  the  estate  is  gone,  and  tliere  is  no  such  thing  as  redemption 
in  such  case.^  Each  case,  however,  depends  upon  its  own  cir- 
cumstances, and  the  intention  of  the  parties.  But  if  this  is 
doubtful,  courts  always  incline  to  treat  it  as  a  mortgage.*  So 
a  sale  with  a  right  to  repurchase,  though  valid,  is  scrutinized 
by  the  courts  to  see  if  it  has  not  been  resorted  to  in  order  to 
evade  the  right  of  redemption  in  the  mortgagor.^  And  a  sale 
to  one  for  a  certain  consideration,  where  a  clause  in  the  deed 
provided  that,  if  the  grantor  should  pay  such  a  sum  by  a  cer- 
tain time,  the  obligation  should  be  void,  but  he  gave  no  obliga- 
tion to  pay,  was  held  not  to  be  a  mortgage,  but  a  sale  with  a 
privilege  of  repurchase.^    But  a  bond,  in  terms  a  defeasance, 

1  Holmes  v.  Grant,  8  Paige,  243. 

2  Fuller  V.  Pratt,  10  Me.  197  ;.  Hebron  v.  Centre  Harbor,  11  N.  H.  571. 

3  2  Cruise,  Dig.  74,  §  38  ;  Robertson  v.  Campbell,  2  Call,  421  ;  Kelly  v.  Tliomp- 
son,  7  Watts,  401 ;  4  Kent,  Com.  144. 

*  Hughes  V.  Sheaff,  19  Iowa,  335 ;  Weatheraly  v.  Weathersly,  40  Miss.   462 ; 
Wingv.  Cooper,  37  Vt.  169,  179. 
°  Trucks  V.  Lindsey,  18  Iowa,  504. 
8  Pearson  v.  Seay,  35  Ala.  612. 


NATURE  AND  FORM  OP  MORTGAGES.  49 

as  that  the  grantee  shall  recoiivey  to  the  grantor,  upon  being 
paid  a  certain  sum,  does  not  convert  the  original  conveyance 
into  a  mortgage,  unless  this  bond  formed  a  part  of  the  original 
agreement  or  transaction  between  the  parties.^ 

§  990.  Mortgage,  or  Contract  torecouvey  — Test.  —  It  is  equally 
competent  for  the  parties  to  give  the  transaction  of  a  convey- 
ance of  land  either  of  these  characters,  according  to  their  inten- 
tion.2  And  the  proposition  may  be  regarded  as  a  general  one, 
that  a  conveyance  is  not  a  mortgage,  unless  the  grantee  in- 
tended to  make  a  loan  upon  it  as  security .^  On  the  other  hand, 
if  the  transaction  of  the  parties  actually  constitutes  a  mortgage 
in  terms,  it  will  have  that  effect,  though  not  so  intended  by 
them  when  it  was  done.  Thus  where  one  made  a  deed,  and 
the  grantee  gave  back  a  bond  to  reconvey  on  certain  conditions, 
it  was  held  that,  though  not  intended  thereby  to  create  a  mort- 
gage, it  was  one  in  fact.* 

§  991.  The  Test,  continued.  —  The  question  seems  to  resolve 
itself  into  whether  there  is  a  loan  and  a  security  therefor  in- 
tended by  the  parties,  or  a  bona  fide  sale  with  a  right  to  repur- 
chase. Thus,  where  L,  who  had  a  verbal  promise  from  P,  to 
whom  he  had  conveyed  land,  to  reconvey  it  on  being  paid,  etc., 
applied  to  W  to  loan  money  on  the  land,  who  refused,  but 
oii'ered  to  take  an  absolute  deed  of  purchase  from  L  and  P,  and 
paid  for  the  land,  and  at  the  same  time  gave  L  a  bond  to 
reconvey  the  estate  within  a  certain  time,  upon  being  repaid 
the  purchase-money,  it  was  held  not  to  constitute  a  mortgage, 
but  a  right  to  repurchase.  There  was  no  loan  by  W  to  L.^ 
So  where  the  grantee,  immediately  after  the  execution  of  a  deed 
of  sale,  gave  back,  but  not  as  a  part  of  the  original  contract,  a 

1  Trull  V.  Skinner,  17  Pick.  213;  Green  v.  Butler,  26  Cal.  .595,  605. 

'  2  Conway  v.  Alexander,  7  Cranch,  218  ;  Page  v.  Foster,  7  N.  H.  392  ;  Flagg  v. 
Mann,  14  Pick.  467,  483  ;  Wms.  Real  Prop.  353,  Ravvle's  note. 

8  De  France  v.  De  France,  34  Penn.  St.  385  ;  Rich  v.  Doane,  35  Vt.  125,  129  ; 
Fullerton  v.  McCurdy,  55  N.  Y.  637,  distinguishing  Stoddard  v.  Whiting,  46  N.  Y. 
627;  Carr  u.  Carr,  52  N.  Y.  251.  In  Houser  v.  Lamont,  55  Penn.  St.  311,  an 
absolute  deed  was  held  a  mortgage  because  it  appeared  given  as  security,  though 
there  was  no  express  agreement  for  repayment  to  the  grantee  of  his  advance.  See 
also  Smith  v.  Kncebel,  82  111.  392  ;  Strong  v.  Shea,  83  111.  575  ;  Barnett  v.  Xelsou, 
46  Iowa,  495. 

*  Col  well  V.  Woods,  3  Watts,  188  ;  Kunkle  v.  Wolfersberger,  6  Watts,  126. 

6  Flagg  V.  Mann,  14  Pick.  467  ;  Murray  v.  Riley,  140  Mass.  490. 
VOL.  II.  —  4 


50  MORTGAGES. 

•writing,  that  if  the  g;rantor  would,  within  a  certain  time,  bring 
so  much  money,  —  the  purcliase-money  and  interest,  —  he  would 
give  up  the  deed,  but,  if  not  then  paid,  the  grantor  was  to  for- 
feit all  claim  to  the  deed,  it  was  held  a  contract  to  repurchase, 
and  not  a  mortgage,^  A  court  of  equity  will  not,  at  the  in- 
stance of  a  grantor,  declare  a  deed  made  to  defraud  or  delay 
creditors,  which  is  absolute  in  its  terms,  to  be  a  mortgage  or  a 
trust.2 

§  992.  Distinguishing  Indicia.  —  There  have  been  numerous 
cases,  both  in  England  and  this  country,  where  this  question 
has  been  raised,  and  certain  things  have  been  held  to  bear  upon 
its  being  a  bona  fide  sale,  with  a  contract  to  repurchase,  or  a 
mortgage  under  the  form  of  a  sale,  to  which  reference  will  now 
be  made.  The  above  is  a  test  of  whether  a  transaction  is  a 
mortgage  or  not,  as  recognized  by  the  English  courts.^  In 
several  cases,  it  w^as  held  that  a  conveyance  in  satisfaction  of  a 
prior  debt,  though  accompanied  by  a  clause  of  redemption,  was 
not  a  mortgage,  but  a  sale,  with  a  right  of  repurchase,*  depending 
upon  whether  the  debt  is  extinguished,  or  the  relation  of  debtor 
and  creditor  remains,  and  a  debt  still  subsists.^  In  the  others, 
cited  below,  a  sale  at  an  agreed  price  paid,  with  an  agreement 
that  the  vendor  may  repurchase  at  an  advanced  price,  was  held 
to  be  but  an  agreement  for  a  repurchase.^ 

§  993.  The  Question  one  of  Fact.  —  It  seems,  after  all,  to  be  a 
question  of  evidence  for  the  court  to  determine  upon  the  facts 
in  each  case,  whether  the  transaction  is  a  mortgage  or  a  sale 
with  right  of  repurchase.  Thus,  in  the  cases  cited  below,  the 
court  held  that  an  absolute  conveyance  with  a  condition  or  bond 
for  reconveyance  on  the  payment  of  a  fixed  sum,  at  a  day  cer- 

1  Reading  v.  Weston,  7  Conn.  143  ;  Cook  v.  Gudger,  2  Jones  (N.  C),  Eq.  172 ; 
Lokerson  v.  Stillwell,  13  N.  J.  Eq.  357. 

2  May  V.  May,  33  Ala.  203  ;  Miller  v.  Marckle,  21  111.  152. 

3  Williams  v.  Owen,  5  Mylne  &  C.  303  ;  Barrell  v.  Sabine,  1  Vern.  268  ;  Perry 
V.  Meddowcroft,  4  Beav.  197;  Cotterell  v.  Purchase,  Cas.  temp.  Talb.  61  ;  Ensworth 
V.  Griffiths,  5  Bro.  Par.  Cas.  184  ;  Haines  v.  Thompson,  70  Penn.  St.  434,  442  ; 
Cornell  v.  Hall,  22  Mich.  377 ;  Hanford  v.  Blessing,  80  III.  188. 

*  Robinson  v.  Cropsey,  2  Edw.  Ch.  138  ;  s.  c.  6  Paige,  480  ;  McKinstry  v. 
Conly,  12  Ala.  678 ;  Poindexter  v.  McCannon,  1  Dev.  Eq.  373  ;  West  v.  Hendrix, 
28  Ala.  226;  Hickox  v.  Lowe,  10  Cal.  197. 

5  Hoopes  V.  Bailey,  28  Miss.  328  ;  Slowey  v.  McMurray,  27  Mo.  113,  116. 

«  Glover  v.  Payn,  19  Wend.  518  ;  Brown  v.  Dewey,  2  Barb.  28. 


NATURE  AND  FORM  OP  MORTGAGES.  61 

tain,  was  prima  facie  a  mortgage,  independent  of  evidence 
showing  the  existence  of  a  debt.^ 

§  994.  Parol  Evidence,  when  excluded.  —  [The  question  can 
only  arise,  however,  when  a  deed  absolute  on  its  face  is  alleged 
to  be  a  mortgage.  Where  the  deed  ap|)cars  on  its  face  to  be  a 
mortgage,  it  is  incompetent  to  show  by  parol  that  it  was  in- 
tended as  an  absolute  conveyance,  for  this  would  be  to  vary  the 
intention  of  the  parties  as  expressed  in  the  writing.  While, 
therefore,  a  conditional  sale  may  be  shown  to  be  a  mortgage, 
the  converse  is  not  true.^]  For  other  cases  illustrative  of 
the  distinction  between  a  mortgage  and  a  conditional  sale,  the 
reader  is  referred  to  the  authorities  cited  below.^ 

§  995.  The  Consideration  as  a  Test.  —  Among  the  circum- 
stances which  courts  regard  as  of  great  weight  in  determining 
whether  a  sale  absolute  in  its  terms  is  or  is  not  to  be  treated  as 
a  mortgage,  is  the  adequacy  or  inadequacy  of  the  consideration 
paid.  If  grossly  inadequate,  it  is  deemed  a  strong  circum- 
stance in  favor  of  regarding  the  transaction  a  mortgage,  though 
it  is  not  conclusive.*  And  where  the  evidence  leaves  it  doubt- 
ful whether  it  is  a  mortgage  or  a  contract  for  repurchase,  courts 
incline  to  treat  it  as  a  mortgage.^ 

1  Watkins  v.  Gregory,  6  Blackf.  113  ;  Peterson  v.  Clark,  15  Johns.  205 ;  Rice 
V.  Rice,  4  Pick.  349. 

2  Kerr  v.  Gilinore,  6  AVatts,  405  ;  Brown  v.  Nickle,  6  Penn.  St.  390  ;  Woods  v. 
Wallace,  22  Penn.  St.  171  ;  Wing  r.  Cooper,  37  Vt.  169,  182j  Kunkle  w.  Wolfers- 
berger,  6  Watts,  126  ;  Haines  v.  Thomson,  70  Penn.  St.  434.  438. 

8  Hiester  v.  Maderia,  3  W.  &  S.  384 ;  Waters  v.  Randall,  6  Met.  479-482  ; 
1  Powell,  Mortg.  138  a;  Verner  v.  Winstanley,  2  Sch.  &  L.  393  ;  Luckettv.  Towns- 
end,  3  Tex.  119 ;  Baker  v.  Thrasher,  4  Denio,  493  ;  Slowey  v.  McMurray,  27  Mo. 
113 ;  Burgett  v.  Osborne,  172  111.  227;  s.  c.  50  N.  E.  Rep.  206  ;  Kilgour  v.  Scott, 
86  Fed.  Rep.  39  ;  Timmons  v.  Center,  —  Ky.  — ;  s.  c.  43  S.  W.  Rep.  437. 

*  Holmes  v.  Grant,  8  Paige,  243  ;  Conway  v.  Alexander,  7  Cranch,  218  ;  Todd 
V.  Hardie,  5  Ala.  698  ;  English  v.  Lane,  1  Port.  (Ala.)  328  ;  West  v.  Hendrix,  28 
Ala.  226;  Moss  v.  Green,  10  Leigh,  2.51  ;  Vernon  v.  Bethell,  2  Eden,  Ch.  110; 
Oldham  v.  Halley,  2  J.  J.  Marsh.  113  ;  Edrington  v.  Harper,  3  J.  J.  Marsh.  353  ; 
Bennett  v.  Holt,  2  Yerg.  6  ;  Davis  v.  Stonestreet,  4  Ind.  101 ;  Sellers  v.  Stalcup, 
7  Ired.  Eq.  13  ;  Kemp  v.  Earp,  id.  167 ;  Elliott  v.  Maxwell,  id.  246  ;  Russell  v. 
Southard,  12  How.  139 ;  Reed  v.  Reed,  75  Me.  264 ;  Villa  v.  Rodriguez,  12  Wall. 
323  ;  Coyle  v.  Davis,  116  U.  S.  108.  And  the  fact  that  advantage  was  taken  of  the 
debtor's  necessities  to  exact  usurious  interest  and  procure  the  deed  will  be  taken 
into  consideration.     Lewis  v.  Wells,  85  Fed.  Rep.  896. 

^  Skinner  v.  Miller,  5  Lit.  84  ;  Ward  v.  Deering,  4  Mon.  44  ;  Wilkins  v.  Seais, 
id.  343 ;  Desloge  v.  Ranger,  7  Mo.  327  ;  Crane  v.  Bounell,  2  N.  J.  Eq.  264;  Scott 


52  MORTGAGES. 

§  996.  No  Defeasance  to  a  Stranger.  —  A  further  requisite  of 
what  would  be  considered  a  suflScient  defeasance  in  form  to 
convert  au  absokite  deed  into  a  mortgage,  is  that  it  should  be 
made  to  the  grantor  himself  ;  if  to  a  stranger,  or  to  the  grantor 
and  a  stranger,  it  would  not  have  that  effect  ;i  as  where  a 
clause  in  the  deed  of  grant  gave  a  stranger  a  right  to  redeem 
by  paying  a  certain  sum  of  money,  agreeably  to  a  bond  given 
by  the  grantee  to  this  stranger,  it  was  held  not  to  constitute 
a  mortgage  of  which  the  obligee  could  avail  himself ;  ^  though 
if  the  grant  be  by  the  husband  and  wife  of  the  wife's  estate,  a 
defeasance  made  to  her  alone  would  constitute  it  a  mortgage.^ 
If  a  deed  clearly  appears  upon  its  face  to  be  a  mortgage,  parol 
evidence  is  not  admissible  to  show  that  it  was  a  conditional  sale 
only,  and  not  a  mortgage.* 

§  997.  Secret  Defeasances  and  Bona  Fide  Purchasers.  —  Ques- 
tions as  to  the  effect  of  parol  agreements,  or  separate  instru- 
ments upon  deeds  absolute  in  their  terms,  can  only  arise 
between  the  parties  or  purchasers  with  notice.  In  some  States 
defeasances  are  required  to  be  recorded,  which  then  raise 
constructive  notice  to  all  persons  interested.^  But  without 
actual  or  constructive  notice  of  an  existing  defeasance,  a  bona 
fide  purchaser,  or  attaching  creditor  of  an  estate,  is  not  affected 
by  its  having  been  made.^  Nor  will  the  continued  possession 
by  the  grantor  of  land  after  the  making  of  his  deed  be  notice 
of  a  defeasance  held  by  him  which  is  not  recorded.'^ 

V.  Henrj',  13  Ark.  112;  Turnis])eed  v.  Cunningham,  16  Ala.  501  ;  Cotterell  y.  Long, 
20  Ohio,  464 ;  Swetland  v.  Swetland,  3  Mich.  482 ;  Gillis  v.  Martin,  2  Dev.  Eq. 
470;  Eaton  v.  Green,  22  Pick.  526  ;  Coote,  Mortg.  (Ara.  ed.)  57  and  note. 

1  Flagg  V.  Mann,  14  Pick.  467  ;  2  Bl.  Com.  327 ;  Low  v.  Henry,  9  Cah  538. 

2  "Warren  i'.  Lovis,  53  Me.  463. 

3  Jilills  V.  Darling,  43  Me.  565. 

*  Kerr  v.  Gilmore,  6  Watt.s,  405  ;  "Wood.s  v.  "Wallace,  22  Penn.  St.  171 ;  Kunkle 
V.  Wolfersberger,  6  Watts,  126 ;  Haines  v.  Thomp.son,  70  Penn.  St.  434,  438. 

5  Tomlinson  v.  Monmouth  Ins.  Co.,  47  Me.  232. 

6  Walton  V.  Cromley,  14  Wend.  63 ;  Man.  Bk.  v.  Bk.  of  Penn.,  7  W.  &  S.  335  ; 
Brown  v.  Dean,  3  Wend.  208  ;  James  v.  Johnson,  6  John.s.  Ch.  417  ;  Jaques  v. 
Weeks,  7  Watts,  261 ;  Friedley  v.  Hamilton,  17  S.  &  R.  70 ;  Dey  v.  Dunham, 
2  Johns.  Ch.  182  ;  Harrison  v.  Trustees,  etc.,  12  Mass.  456  ;  Purrington  v.  Pierce,  38 
Me.  447;  Jackson  v.  Ford,  40  Me.  381  ;  AVyatt  v.  Stewart,  34  Ala.  716;  Hender- 
son V.  Pilgrim,  22  Tex.  464,  475  ;  Knight  v.  Dyer,  57  ]Me.  174. 

T  Kunkle  v.  AVolfersberger,  6  Watts,  126  ;  Newhall  v.  Pierce,  5  Pick.  450;  Hen- 
nessey V.  Andrews,  6  Gush.  170;  Crassen  v.  Swovelaad,  22  Ind.  427. 


NATURE    AND    FORM    OF   MORTGAGES.  53 

§  998.  Once  a  Mortgage  always  a  Mortgage.  —  If  the  trans- 
action between  the  jjarties  be  in  fact  a  mortgage,  its  character 
cannot  be  affected  or  changed  by  any  agreement  entered  into 
at  the  time  between  them  as  to  redemption  or  the  other  in- 
cidents of  a  mortgage.  The  right  of  redemption  attaches  as 
an  inseparable  incident  created  by  law,  and  cannot  be  waived 
by  agreement.^  A  mortgage,  moreover,  depends  for  its  vitality 
upon  the  law  in  force  at  the  time  of  its  execution.^  The  doc- 
trine universally  applicable  is,  if  once  a  mortgage,  always  a 
mortgage.  Nor  can  it  be  made  otherwise  by  any  agreement  of 
the  parties  made  at  the  time  of  the  execution  of  the  deed,  nor 
upon  any  contingency  whatever.  Equity  will  not  admit  of  a 
mortgagor  embarrassing  or  defeating  his  right  to  redeem  the 
estate  by  any  agreement  which  he  may  be  induced  to  enter  into 
in  order  to  effect  a  loan.^ 

§  999.  Destruction  of  Defeasance  ;  Bona  Fide  Purchaser.  —  This 
does  not  preclude  any  subsequent  hona  fide  agreement  in  re- 
spect to  the  estate  between  the  parties ;  and  where  a  mortgagor 
voluntarily  cancelled  the  instrument  of  defeasance  whicli 
he  held,  it  gave  to  the  deed  which  it  was  intended  to  defeat 
the  effect  of  an  original  absolute  conveyance  as  between 
the  parties.*  [The  doctrine,  however,  that  a  mortgage  deed 
may  be  converted  into  an  absolute  conveyance  by  a  destruc- 

1  Wing  V.  Cooper,  37  Vt.  169,  181 ;  Willets  v.  Burgess,  34  111.  494. 

2  Olson  V.  Nelson,  3  Minn.  53. 

3  Clark  V.  Henr}',  2  Cow.  324 ;  Miami  Ex.  Co.  v.  U.  S.  Bk.,  Wright,  253  ; 
Eaton  V.  Whiting,  3  Pick.  484;  Vernon  v.  Bethell,  2  Eden,  Ch.  110;  1  Spence, 
Eq.  Jur.  693  ;  2  Fonbl.  Eq.  263  ;  Henry  v.  Davis,  7  Johns.  Ch.  40;  2  Crabb,  Real 
Prop.  847  ;  Waters  v.  Randall,  6  Met.  479  ;  Johnston  v.  Gray,  16  S.  &  R.  361 ;  Co. 
Lit.  205  a,  n.  96  ;  Coote,  Mortg.  14  ;  Willett  v.  Winnell,  1  Vern.  488  ;  Story,  Eq. 
Jur.  §§  10,  19  ;  Bay  ley  v.  Bailey,  5  Gray,  505  ;  Thompson  v.  Davenport,  1  Wash. 
(Ya. )  125;  Davis  i'.  Stonestreet,  4  Ind.  101;  Rankin  v.  Mortiraere,  7  Watts, 
372  ;  Lee  v.  Evans,  8  Cal.  424  ;  Nugent  v.  Riley,  1  Met.  117  ;  Newcomb  v.  Bon- 
ham,  1  Vern.  7  ;  Howard  v.  Harris,  2  Ch.  Cas.  147;  Blackburn  v.  Warwick,  2  Yo. 
&  C.  Ex.  92  ;  Langstaffc  v.  Fenwick,  10  Yes.  405  ;  Baxter  *;.  Cliild,  39  Me.  110  ; 
Linnellv.  Lyford,  72  Me.  280;  Batty  u.  Snook,  5  Mich.  231;  Wms.  Real  Prop. 
353  ;  Vanderhaize  v.  Hugues,  13  N.  J.  Eq.  244;  Wynkoop  v.  Cowing,  21  111.  570; 
Preschbaker  v.  Feaman,  32  111.  475 ;  Oldenbaugh  v.  Bradford,  67  Penn.  St.  96  ; 
Poston  V.  Jones,  122  N.  C.  536 ;  s.  c.  29  S.  E.  Rep.  951. 

*  Trull  V.  Skinner,  17  Pick.  213  ;  Harrison  v.  Trustees,  12  Mass.  456  ;  Mar- 
shall V.  Stewart,  17  Ohio,  356  ;  Vennum  v.  Babcock,  13  Iowa,  194  ;  Falls  v.  Con- 
way Ins.  Co.,  7  Allen,  46  ;  Rice  t;.  Bird,  4  Pick.  350,  note;  Green  v.  Butler,  26 
Cal  595. 


54  MORTGAGES. 

tion  of  the  defeasance  could  hardly  be  extended  to  a  Hen  theory 
mortgage  ;  for,  by  the  delivery  of  such  a  mortgage,  the  grantee 
acquires  no  estate  in  the  land  ;  and  the  mere  destruction  of  the 
defeasance,  wliatever  the  intention,  could  not  operate  to  give 
him  one.]  But  where  a  vendee  of  land  mortgaged  it  back 
to  his  vendor,  and  then  gave  up  and  cancelled  his  deed  which 
had  not  been  recorded^  it  was  held  that,  so  long  as  the  mort- 
gagee retained  his  mortgage,  this  did  not  operate  as  a  reconvey- 
ance by  the  mortgagor  to  the  mortgagee. ^  The  mortgagee  may 
always  purchase  the  mortgagor's  right  of  redemption,  and  thus 
acquire  an  absolute  title.  This,  however,  is  always  regarded 
with  great  jealousy  by  courts  of  equity,  and  will  be  avoided  for 
fraud  actual  or  constructive,  or  for  any  unconscionable  advan- 
tage taken  by  the  mortgagee  in  obtaining  it.^  It  will  be  sus- 
tained if  perfectly  fair  and  for  an  adequate  consideration.^ 

§  1000.  Agreements  limiting  Right  to  redeem.  —  So  careful 
is  equity  to  guard  against  any  attempt  to  limit  or  curtail 
the  rights  of  mortgagors  in  respect  to  the  redemption  of 
estates  by  any  contemporaneous  agreement,  that  it  will  re- 
lieve against  any  such  agreement  if  it  limits  the  redemption 
to  a  certain  time,^  or  restricts  it  to  a  certain  class  of  persons,^ 
or  gives  to  the  mortgagee,  after  default  of  the  mortgagor,  a 
right  to  purchase  the  estate  at  a  particular  sum,^  or  to  pay 
an  increased  rate  of  interest  in  order  to  redeem,  if  the  debt 
is  not  paid  at  its  maturity,''  or  to  pay  interest  upon  the  inter- 
est in  arrear,  as  well  as  upon  the  principal,  by  making  it  a 

1  Patterson  v.  Yeaton,  47  Me.  308  ;  Nason  v.  Grant,  21  Me.  160  ;  Lawrence  v. 
Stratton,  6  Cash.  163. 

2  Russell  V.  Southard,  12  How.  139,  154  ;  Piatt  v.  McClure,  3  Woodb.  &  M. 
151  ;  Hyndman  y.  Hyndman,  19  Vt.  9;  Green  v.  Butler,  supra;  Ford  u.  Olden, 
L.  R.  3  Eq.  461;  Mason  v.  Grant,  21  Me.  160;  Carpenter  v.  Carpenter,  70  111.  457. 

3  M'Kinstry  v,  Conly,  12  Ala.  678  ;  Hicks  v.  Hicks,  5  Gill  &  J.  75;  Sheckell 
V.  Hopkins,  2  Md.  Ch.  Dec.  89  ;  Holridge  v.  Gillespie,  2  Johns.  Ch.  30  ;  Wyn- 
koop  V.  Cowing,  21  111.  570. 

*  Newcomb  v.  Bonhani,  1  Vern.  7  ;  Spurgeon  v.  Collier,  1  Eden,  Ch.  55.  So 
if  it  postpones  it  unreasonably.     Cowdry  v.   Day,    1   Gif.  316. 

5  Howard  v.  Harris,  2  Ch.  Cas.  147  ;  Johnston  v.  Gray,  16  S.  &  R.  361  ;  Jason 
V.  Eyres,  2  Ch.  Cas.  33. 

6  Willett  V.  Winnell,  1  Vern.  488  ;  "Waters  v.  Randall,  6  Met.  479.  But  such 
an  agreement,  if  subsequent,  is  valid.     Austin  r.   Bradley,   2  Day,  466. 

7  Coote,  Mortg.  511  ;  Mayo  v.  Judah,  5  Munf,  495  ;  Halifax  v.  Higgens, 
2  Vern.  134. 


NATURE  AND  FORM  OP  MORTGAGES.  55 

part  of  the  principal,^  or  to  pay  a  sum  over  and  above  the 
principal  and  interest  in  order  to  redeem.^  It  was  also  laid 
down  in  one  case  that  equity  would  relieve  against  a  condi- 
tion in  a  mortgage  whereby  a  debt  due  by  instalments  should 
be  payable  at  once  upon  failure  to  pay  any  instalment  as  it 
should  fall  due.^  As  the  debt  due  was  not  on  interest,  the 
effect  of  making  it  all  due  and  payable,  upon  the  failure  to 
pay  any  instalment,  would  be  loss  of  the  interest  upon  the 
debt  to  the  obligee,  between  the  times  of  payment  of  the  in- 
stalment and  of  the  subsequent  instalments,  by  the  way  of  a 
penalty,  against  which  equity  will  grant  relief.  But  where 
a  bond  was  payable  with  interest  on  time,  with  a  proviso  that, 
if  the  interest  is  not  promptly  paid,  the  principal  shall  be  at 
once  due  and  collectible,  it  was  held  it  might  be  enforced.^ 
And  the  better  opinion  seems  to  be,  that  such  agreement 
would  be  held  valid  both  at  law  and  in  equity ;  and,  if  by 
the  terms  of  the  mortgage  the  whole  debt  is  at  once  due  upon 
a  failure  to  pay  the  interest  or  instalment,  it  needs  no  action 
of  the  holder  of  the  mortgage  by  way  of  election  to  make  it 
payable,^  whereas  if,  by  its  terms,  the  debt  is  to  be  due  in 
such  a  contingency,  at  the  election  of  the  mortgagee,  he  is  to 
signify  such  election  by  notice  to  the  mortgagor  before  pro- 
ceeding to  enforce  the  mortgage  for  the  whole  debt.^  Equity, 
however,  will  save  the  mortgagor  from  the  consequences  of 
such  non-payment  if  his  failure  to  pay  was  due  to  the  fraud  of 
the  mortgagee,  or  if  he  has  been  ready  and  has  offered  to  pay 
the  same  to  the  mortgagee ;  although  the  mortgage  had  been 
previously  assigned  to  a  third  party,  if  not  informed  who  was 
then  the  holder  of  the  mortgage ;  ^  but  if  the  default  was  due 

1  Blackburn  v.  Warwick,  2  Yo.  &  C.  Ex.  92.  See  McGready  v.  McGready, 
17  Mo.  597  ;  Chambers  v.  Goldwin,  9  Ves.  254,  271. 

2  Jennings  v.  Ward,  2  Vern.  520. 
8  Tiernan  v.  Hinman,  16  III.  400. 

*  Ottawa  Plank  Road  v.  Murray,  15  111.  336.     See  post,  §  1111. 

6  Ferris  v.  Ferris,  28  Barb.  29  ;  Valentine  v.  Van  Wagner,  37  Barb.  60  ;  Basse 
V.  Gallegger,  7  Wis.  442,  446  ;  Gowlett  v.  Hanforth,  2  W.  Bl.  958  ;  James  v. 
Thomas,  5  B,  &  Ad.  40  ;  People  v.  Sup.  Court,  19  Wend.  104  ;  Noyes  v.  Clark, 
7  Paige,   179. 

6  Basso  V.  Gallegger,  7  Wis,  442,  446. 

T  Noyes  v.  Clark,  supra.  See  also  Mitchell  v.  Bumham,  44  Me.  286  ;  James  v. 
Johnson,  6  Johns.  Ch.  417;  Wilcox  v.  Allen,  36  Mich.  160;  Hale  v.  Fatten, 
60  N.  Y.  233. 


66  MORTGAGES. 

to  his  own  neglect  equity  will  not  relieve  him.^  Where  there 
was  a  rate  of  interest  fixed  upon  the  loan  less  than  the  lawful 
interest,  with  a  proviso  that  if  not  paid  by  a  certain  time  the 
interest  should  be  at  another  rate,  it  was  held  to  be  a  valid 
security  for  such  increased  rate.^  If  a  mortgagee  avail  him- 
self of  his  position  and  the  necessities  of  the  mortgagor  to 
gain  any  collateral  advantage  out  of  the  estate,  such  as  a 
lease,  equity  will  relieve  against  it.^ 

§  1001.  Priority  of  Purchase-money  Mortgages.  —  Although 
it  may  be  assumed  that,  where  two  creditors  obtain  simulta- 
neous liens  upon  a  debtor's  property,  they  become  tenants  in 
common  from  the  impossibility  of  discriminating  in  regard 
to  their  respective  equities,^  yet  where  the  same  grantor  made 
two  mortgages  simultaneously,  one  to  his  vendor  to  secure  the 
purchase-money  and  the  other  to  a  third  person  to  secure  an 
independent  debt,  it  was  held  that  the  mortgage  first  men- 
tioned took  precedence  of  the  other  in  its  lien  upon  the 
premises.^  Otherwise  they  would  share  pro  rata  in  propor- 
tion to  their  respective  debts. ^  So  where  a  purchaser  secures 
the  purchase-money  either  to  the  vendor  or  to  one  who  pays 
it,  by  a  mortgage  simultaneous  with  his  deed,  it  will  take 
precedence  of  an  outstanding  judgment  against  him.'' 

§  1002.  Mortgages  to  secure  Support.  —  There  is  a  class  of 
mortgages  which  are  somewhat  different  from  those  ordinarily 
in  use,  and  yet  vary  so  much  in  their  terms  as  to  render  it 
difficult  to  reduce  them  within  any  general  and  uniform  rule ; 
and  that  is,  mortgages  conditioned  to  support  the  mortgagee 
or  some  other  person.  These  are  sometimes  made  with  a 
collateral  bond  or  contract  on  the  part  of  the  mortgagor, 
which  is  referred  to  in  the  condition  of  the  deed,  and  some- 
times by  a  recital  only  in  the  deed.  From  the  general  tenor 
of  the  cases,  some  few  rules  and  principles  seem  to  have  been 

1  Bennett  v.  Stevenson,  53  N.  Y.  508. 

2  Brown  v.  Barkham,  1  P.  Wms.  652. 

8  Gubbins  v.  Creed,  2  Sch.  &  L.  214  ;  Holridge  v.  Gillespie,  2  Johns.  Ch.  30. 

*  Ante,  §  878. 

s  Clark  V.  Brown,  3  Allen,  509. 

6  Aldrich  v.  Martin,  4  R.  I.  520.  See  Gilman  v.  Moody,  43  N.  H.  239,  243. 
Parol  evidence  competent  to  show  which  of  two  or  more  deeds  simultaneously 
executed  was  intended  to  take  precedence. 

">  Curtis  V,  Root,  20  111.  53. 


NATURE  AND  FORM  OF  MORTGAGES.  57 

settled  which  may  he  regarded  as  of  general  application. 
Thus,  in  those  States,  where  the  ohligation  binds  the  mort- 
gagor, his  heirs,  executors,  and  administrators,  but  says 
nothing  of  assigns,  it  is  held  to  be  a  personal  duty,  and  it 
is  not  competent  for  the  mortgagor  to  convey  his  estate,  nor 
can  his  creditors  levy  upon  it,  so  as  thereby  to  have  the  pur- 
chaser or  creditor  acquire  a  right  to  perform  the  condition 
and  save  the  estate. ^  And  if  the  mortgagor  fails  to  do  this 
in  his  lifetime,  or  his  heirs  and  executors  after  his  death,  the 
mortgagee  may  enter  and  take  possession  of  the  mortgaged 
premises  for  condition  broken. ^  Such  a  contract  and  mort- 
gage are  not  the  subject  of  assignment,  for  the  reason  that 
it  can  only  be  performed  to  and  with  the  mortgagee,  person- 
ally.^ But  if  the  mortgagee  assent  to  the  transfer  by  the 
mortgagor,  the  assignee  would  have  the  same  right  to  pos- 
session and  be  subject  to  the  same  liabilities  as  the  mortgagor 
himself.^  And  where  the  condition  was  to  pay  a  debt  of  a 
certain  amount  by  supporting  the  mortgagee  a  certain  length 
of  time,  the  mortgagee  may  insist  upon  the  support  being  pro- 
vided, and  it  is  not  at  the  election  of  the  mortgagor  to  do  this 
or  pay  the  money. ^  But  where  the  condition  was  to  pay  82,500 
or  support  the  mortgagee,  it  was  for  the  mortgagor  to  elect ; 
and  when  he  has  elected,  he  is  concluded  by  it.^  And  in 
order  to  have  a  demand  for  support  on  the  part  of  the  mort- 
gagee effectual,  he  must  be  ready  and  offer  to  receive  it  at  a 
reasonably  convenient  place,  if  none  is  fixed  in  the  agreement 
of  the  parties.^  In  the  second  place,  this  duty  of  furnishing 
support  to  the  mortgagee,  where  the  consideration  of  the  obli- 
gation is  the  conveyance  by  the  mortgagee  to  the  mortgagor 
of  the  premises  mortgaged,  ordinarily  implies,  in  the 
absence  of  any  express  provision,  and  it  would  be  so  con- 
strued, that  the  mortgagor  should  retain  possession  until  condi- 

1  Bryant  v.  Erskine,  55  Me.  153  ;  Dearborn  v.  Dearborn,  9  N.  H.  117. 

2  Flanders  v.  Lamphear,   9  N.  H.  201  ;  Eastman  v.  Batchelder,   36  N.  H.  141. 
See  Clinton  v.  Ely,  10  Me.  292. 

8  Bethlehem  v.  Annis,  40  N.  H.  34. 

*  Bryant  v.  Erskine,   65  Me.   156,  157  ;  Daniels  v.  Eisenlord,  10  Mich.  454  ; 
Mitchell  V.   Burnham,   57  Me.  314,  322. 

6  Hawkins  v.  Clermont,  15  Mich.  511  ;  Evans  v.  Norris,  6  Mich.  369. 

6  Bryant  v.  Erskine,  supra  ;  Soper  v.  Guernsey,  71  Pcun.  St.  219,  224. 

7  Holmes  v.  Fisher,  13  N.  H.  9. 


58  MORTGAGES. 

tion  broken.^  In  the  next  place,  unless  there  is  something  in 
the  deed  restricting  the  place  at  which  the  support  shall  be 
furnished,  the  mortgagee  is  not  bound  to  receive  it  at  any 
particular  place,  but  may  require  it  to  be  furnished  at  any 
reasonable  distance  from  the  mortgaged  premises,  provided 
it  do  not  occasion  to  the  mortgagor  unreasonable  additional 
expense  and  trouble  to  that  of  furnishing  it  upon  the  mort- 
gaged premises.  It  should  be  at  a  reasonable  place  for  both 
parties. 2  Where  the  condition  was  for  the  support  of  the 
grantor  by  the  grantee  upon  the  granted  premises,  it  did  not 
imply  that  the  grantor  was  to  receive  this  in  the  family  and 
at  the  table  of  the  grantee,  although  he  lived  in  fact  upon  the 
premises.^  If  the  support  to  be  furnished  be  to  others  than 
the  mortgagee,  and  they  survive  him,  his  executors  or  admin- 
istrators are  the  parties  to  enforce  the  mortgage  for  the  benefit 
of  such  survivors.*  And  if  there  be  a  breach  of  condition  by 
failure  to  furnish  such  support,  equity  will  allow  the  mort- 
gagor or  his  assigns  to  redeem  by  paying  in  money  an  equiva- 
lent for  the  support  thus  withheld.^ 

1  Flanders  v.  Lamphear,  supra;  Wales  v.  Mellen,  1  Gray,  512  (overruling  Col- 
man  V.  Packard,  16  Mass.  39)  ;  Rhoades  v.  Parker,  10  N.  H.  83  ;  Dearborn  v. 
Dearborn,  9  N.  H.  117;  Bryant  r.  Erskine,  supra;  Soper  v.  Guernsey,  71  Penn. 
St.  219,  224. 

2  Wilder  v.  Whittemore,  15  Mass.  262  ;  Pettee  v.  Case,  2  Allen,  546  ;  Thayer 
V.  Richards,  19  Pick,  398  ;  Fiske  v.  Fiske,  20  Pick.  499  ;  Flanders  v.  Laniphear, 
supra. 

8  Hubbard  v.  Hubbard,  12  Allen,  586. 

4  Marsh  v.  Austin,  1  Allen,  235  ;  Gibson  v.  Taylor,  6  Gray,  310  ;  Holmes  v. 
Fisher,  13  N.  H.  9. 

6  Wilder  v.  Whittemore,  15  Mass.  262  ;  Fiske  v.  Fiske,  20  Pick.  499  ;  Austin 
V.  Austin,  9  Vt.  420  ;  Bethlehem  v.  Annis,  40  N.  H.  34 ;  Bryant  v.  Erskine, 
65  Me.  156. 


MORTGAGES   WITH    POWERS  OP  SALE.  69 


CHAPTER  XLII. 

MORTGAGES  WITH   POWERS   OP  SALE, 

§  1003.  Such  mortgages  valid. 

1004.  Mortgagee  a  trustee  —  Execution  of  power. 

1005.  Nature  of  the  power. 

1006.  Power,  how  far  assignable. 

1007.  Mortgagor  need  not  join  in  conveyance. 

1008.  Disposition  of  surplus  after  sale. 

1009.  Mortgagee  acts  as  trustee. 

1010.  Execution  of  the  power. 

1011.  Mortgagee  as  purchaser. 

1012.  Good  faith  required  of  mortgagee. 

1013.  Execution  of  power  —  Statute  regulations. 

1014.  Power  of  sale  works  no  other  change  in  mortgage. 

1015.  No  redemption  after  sale. 

1016.  Extinguishment  of  the  power. 

§  1003.  Such  Mortgages  valid.  —  It  is  now  well  settled  that 
a  mortgage  may  be  made  with  a  power  of  sale  in  the  mort- 
gagee, in  case  the  debt  secured  is  not  paid  at  a  time  pre- 
scribed, and  that  a  sale  made  by  virtue  of  such  a  power  may 
create  a  valid  and  absolute  estate  in  the  purchaser.  ^  And 
where  a  mortgagee,  under  a  mortgage  with  a  power  of  sale, 
sold  and  conveyed  the  estate  to  the  mortgagor's  wife,  it  was 
held  to  be  as  valid  a  sale  as  if  she  had  not  been  thus  con- 
nected. ^  And  the  power  of  sale  may  be  valid,  though  it  be 
not  coextensive  with    the  condition  of  the  mortgage.^     So, 

1  Wilson  V.  Troup,  7  Johns.  Ch.  25;  2  Crabb,  Eeal  Prop.  848  ;  Eaton  v.  Whit- 
ing, 3  Pick.  484;  2  Greenl.  Cruise,  78,  79,  n.;  Croft  v.  Powel,  Com.  Rep.  603; 
Coote,  Mortg.  124  ;  id.  130,  n. ;  Longwith  v.  Butler,  3  Gilm.  32  ;  Kinsley  v. 
Ames,  2  Met.  29;  Bloom  v.  Van  Rensselear,  15  III,  503;  Mitchell  v.  Bogan, 
11  Rich.  (S,  C)  686  ;  Smith  v.  Provin,  4  Allen,  516,  518;  Walthall's  Ex'rs  v. 
Rives,  34  Ala.  91 ;  Fanning  v.  Kerr,  7  Iowa,  450,  462. 

2  Field  V.  Gooding,  106  Mass.  310  ;  Hall  v.  Bliss,  118  Mass.  554,  560. 

8  Butler  V.  Ladue,  12  Mich.  173.  In  Torrey  v.  Cook,  116  Mass,  163,  it  is  held 
that  the  mortgagee  cannot  sell  less  than  the  whole  title  of  the  mortgagor  and 
himself  to  the  land  mortgaged.  Here  the  sale  was  only  of  an  undivided  half  of 
the  premises.  But  where  there  are  three  separate  parcels  in  separate  towns,  a 
sale  may  be  made  of  one  only  at  first,     Pryor  v.  Baker,  133  Mass.  459, 


60  MORTGAGES   WITH    POWERS    OF   SALE. 

though  the  mortgage  be  for  life  only,  as  to  one,  his  succes- 
sors and  assigns,  the  power  of  sale  contained  in  it  may  em- 
power the  mortgagee  to  convey  a  fee  in  the  premises.  ^  The 
courts  of  Virginia  were  slow  to  admit  the  power,  but  in  more 
recent  cases  have  held,  that,  if  the  mortgagor  acquiesces  in 
the  sale,  he  cannot  disturb  the  purchaser. ^  In  Vermont,  the 
courts  were  reluctant  to  admit  the  principle  of  such  a  sale, 
and  still  hold  that  it  "ought  not  to  be  recognized  in  any  case, 
unless  it  is  conveyed  by  an  express  grant,  and  in  clear  and 
explicit  terms.  "^  And  chancery  will  interpose  to  prevent 
the  exercise  of  such  a  power  in  an  oppressive  manner.* 

§  1004.  Mortgagee  a  Trustee  —  Execution  of  Power.  —  In 
executing  a  power  of  sale,  a  mortgagee  is  the  trustee  of  the 
debtor,  and  must  act  bona  fide  and  adopt  all  reasonable  modes 
of  proceeding  to  render  the  sale  most  beneficial  to  the  debtor.^ 
It  is  competent  for  the  parties  to  fix  the  terms  on  which  the 
sale  is  to  be  made ;  and  the  terms  of  this  power  must  be 
strictly  pursued,  or  the  sale  will  be  void.^  A  mere  literal 
compliance  with  the  terms  of  the  power  will,  moreover,  not 
be  sufficient.'' 

§  1005.  Nature  of  the  Power.  —  Such  a  power  is  coupled 
with  an  interest,  and  is  appendant  to  the  estate,  and  irrevo- 

1  Sedgwick  v.  Laflin,  10  Allen,  430. 

2  Chovvning  v.  Cox,  1  Rand.  306  ;  Taylor  v.  Chowning,  3  Leigh,  654. 
8  Wing  V.  Cooper,  37  Vt.  184. 

*  Matthie  v.  Edwards,  2  Coll.  465;  Piatt  v.  ]\IcClure,  3  Woodb.  &  M.  151  ; 
2  Greenl.  Cruise,  79,  n. 

6  Howard  v.  Ames,  3  Met.  308;  Robertson  v.  Norris,  1  Giffard,  421  ;  Jenkins 
V.  Jones,  2  Giffard,  99;  Dexter  i>.  Shepard,  117  Mass.  480;  Hood  v.  Adams,  124 
Mass.  481,  484  ;  Long  v.  Richards,  170  Mass.  120  ;  s.  c.  48  N.  E.  Rep.  1083  ;  s.  c. 
64  Am.  St.  Rep.  281;  Fenton  v.  Torrey,  133  Mass.  138.  And  is  liable  in 
damages  for  his  failure.  Ibid.  Hence,  also,  if  he  buys  himself  he  is  bound,  though 
he  refuses  to  execute  the  deeds.  Hood  v,  Adams,  S2ipra ;  Muhlig  v,  Fiske,  131 
Mass.  110. 

6  Longwith  v.  Butler,  3  Gilm.  32,  39;  Cooper  v.  Croslw,  3  Gilm.  506;  Hoff- 
man V.  Anthony,  6  R.  L  282  ;  Roarty  v.  Mitchell,  7  Gray,  243;  Smith  v.  Provin, 
4  Allen,  516  ;  Bradley  v.  Chester  V.  R.  R.,  36  Penn.  St.  141,  151.  The  omission 
which  avoided  the  sale  in  the  case  of  Smith  v.  Provin  was  that  of  an  affidavit  and 
record  of  the  sale  as  provided  in  the  deed.  But  where  the  sale  is  in  good  faith, 
omitting  to  state  the  amount  due  on  a  prior  mortgage,  or  the  street  number,  if  not 
mentioned  in  the  mortgage,  or  that  there  has  been  a  default,  does  not  invalidate  it. 
Mod.  L.  Ho.  Ass'n  v.  Boston,  114  Mass.  133. 

^  Thompson  v.  Heywood,  129  Mass.  401. 


MORTGAGES    WITH    POWERS   OF   SALE.  61 

cable.  It  consequently  passes  with  the  estate  by  assignment, 
and  is  unaffected  by  the  mortgagor's  bankruptcy  or  death. 
The  estate  in  such  case  passes  to  the  mortgagee  like  a  devise 
to  executors,  with  power  of  sale.^  Such  a  sale,  if  made  by 
the  mortgagee  in  his  own  name,  being  under  a  power  coupled 
with  an  interest,  would  be  valid.  So  if  the  mortgagee  assigns 
his  mortgage,  his  assignee  may  sell  in  his  own  name.  And 
if  a  wife  join  with  her  husband  in  a  mortgage  of  his  land, 
with  a  power  of  sale,  and  the  sale  be  made,  it  will  bar  her 
dower. 2  If  a  mortgage  be  made  to  a  married  woman,  with  a 
power  of  sale  upon  the  non-payment  of  the  debt,  and  she  make 
the  sale  in  her  own  name,  without  joining  her  husband,  it 
would  be  a  good  execution  of  the  power,  and  a  valid  convey- 
ance. It  is  not  her  real  estate  which  is  sold  under  these  cir- 
cumstances.^ And  if  the  power  in  the  mortgage  authorizes 
the  mortgagee  to  sell  in  his  own  name,  and  the  mortgagor 
die  before  the  sale,  the  mortgagee  may  sell  in  his  own  name.* 
In  Texas,  such  a  power  determines  upon  the  death  of  the 
mortgagor.  But  in  Iowa  it  survives  to  the  administrator  of 
the  mortgagee,  if  named  in  the  mortgagee's  deed.^  Nor  is 
the  power  of  sale  by  a  mortgagee  within  the  rule  against 
perpetuities.^ 

§  1006.     Power,  how  far    assignable.  —  If  a  mortgagee,  with 

1  Bergen  v.  Bennett,  1  Caines'  Cas.  1  ;  AVilson  v.  Troup,  2  Cow.  195,  236  ;  Hall 
V.  Bliss,  118  Mass.  554.  That  such  a  power  is  irrevocable,  and  may  be  exercised 
after  the  death  of  mortgagor,  see  also  Beatie  v.  Butler,  21  Mo.  313,  319;  Hunt  v. 
Rousnianier,  8  Wheat.  174  ;  Hannah  v.  Carrington,  18  Ark.  85  ;  Wilburn  v.  Spof- 
ford,  4  Sneed,  698,  704  ;  Bonney  y.  Smith,  17  111.  531  ;  Jefifersonville  Assoc,  v.  Fisher, 
7  Ind.  699,  702 ;  Robertson  v.  Gaines,  2  Humph.  367  ;  Strother  v.  Law,  54  111.  413. 

2  Strother  v.  Law,  54  111.  413,  418  ;  Mason  v.  Ainsworth,  58  111.  163. 

3  Cranston  v.  Crane,  97  Mass.  459,  465. 
*  Varnum  v.  Meserve,  8  Allen,  158. 

6  Robertson  v.  Paul,  16  Tex.  472  ;  Fanning  v.  Kerr,  7  Iowa,  450  ;  Collins  v. 
Hopkins,  id.  463.  The  language  of  the  court  of  Pennsylvania  upon  this  sub- 
ject, after  stating  that  such  a  power  has  come  into  use  tliere  within  a  few  years, 
is,  "It  being  a  power  annexed  to  the  estate  and  coupled  with  an  interest,  it  is 
necessarily  irrevocable.  It  becomes  a  part  of  the  mortgage  security,  and  vests  in 
any  person  who,  by  assignment  or  otherwise,  becomes  entitled  to  the  money 
secured  to  be  paid."  "  The  sale  that  is  made  in  pursuance  of  it  is  virtually  a 
foreclosure  of  the  mortgagor's  equity  of  redemption."  Bradley  v.  Chester  V.  R.  R., 
36  Penn.  St.  151  ;  Brisbane  v.  Stoughton,  17  Ohio,  482. 

6  Gilbertson  v.  Richards,  5  H.  &  N.  453,  459  ;  Briggs  v.  Oxford,  1  De  G.  M. 
&  G.  363. 


62  MORTGAGES   WITH    POWERS    OF   SALE. 

such  a  power,  conveys  the  whole  of  his  estate,  the  power 
passes  with  it.  But  being  in  its  nature  an  indivisible  thing, 
if  he  convey  a  part  only,  he  does  not  confer  a  power  pro  tanto 
upon  his  grantee.  In  such  a  case,  the  mortgagee  may  still 
execute  the  power,  so  far  as  title  is  concerned,  but  not  so  as 
to  interfere  with  the  possession  which  he  has  parted  with  to 
another;  that  is,  the  grantor  shall  not  defeat  his  own  grant. 
The  case  put  by  way  of  illustration  is,  a  lease  by  a  mortgagee, 
who  has  a  power  of  sale,  of  a  part  of  the  mortgaged  premises, 
and  a  subsequent  sale  by  him  of  the  whole  estate.^  In  Illi- 
nois, and  perhaps  in  other  States,  where  the  mortgage  creates 
a  lien  only,  while  the  transfer  of  the  mortgage  note  will  carry 
the  power  of  sale,  if  the  mortgage  in  terms  includes  the  as- 
signee, ^  a  mere  assignment  of  the  mortgage,  or  of  the  debt 
secured  by  it,  will  only  pass  an  equitable  right,  and  the  power 
must  still  be  exercised  by  the  mortgagee.^  An  agreement  by 
the  mortgagor  with  the  assignee  of  such  a  mortgage  to  pay  a 
different  sum,  and  at  a  different  time  from  that  stipulated  in 
the  mortgage,  was  held  not  to  impair  a  right  of  sale  under  the 
power  contained  in  the  mortgage.* 

§  1007.  Mortgagor  need  not  join  in  Conveyance.  —  Such  a 
mortgagee,  therefore,  or  his  assigns,  has  no  occasion  to  join 
the  mortgagor  in  a  conveyance  of  the  estate.  And  where  a 
purchaser  under  such  a  sale  refused  to  complete  it,  on  the 
ground  that  the  mortgagor  had  not  concurred  in  making  it, 
the  coui't,  upon  a  bill  filed,  decreed  a  specific  performance; 
and  where  such  purchaser,  in  a  bill  for  specific  performance, 
made  the  mortgagor  a  party,  the  court  dismissed  the  biU.^ 
If,  however,  the  power  be  not  in  the  deed  itself,  but  in  a 
separate  instrument,  the  purchaser  might  insist  that  the 
mortgagor  should  be  a  party  to  the  conveyance.^ 

1  Wilson  V.  Troup,  2  Cow.  195,  236  ;  Jencks  ;;.  Alexander.  11  Paige,  619. 

2  Pardee  y.  Lindle}',  31  111.  174;  Olds  v.  Cummings,  id.  188;  Strother  ?;.  Law, 
54  in.  413. 

3  Hamilton  v.  Lubukee,  51  111.  415  ;  Mason  v.  Ainsworth,  58  111.  163 ;  but  see 
Stanley  v.  Kenipton,  59  Me.  472. 

*  Young  V.  Koberts,  15  Beav.  558. 

s  Corder  v.  Morgan,  18  Yes.  344  ;  Clay  v.  Sharpe,  cited  id.  345,  n.,  Sum- 
ner's ed. 

6  Croft  V.  Powel,  Com.  Rep.  603. 


MORTGAGES   WITH    POWERS   OF   SALE.  63 

§  1008.  Disposition  of  Surplus  after  Sale.  —  If  upon  making 
sale  of  the  estate  under  a  power  in  a  mortgage  there  is  a 
surplus,  after  satisfying  the  debt,  the  same  will  be  in  the 
mortgagee's  hands  as  trustee  for  him  to  whom  the  equity 
of  redemption  would  have  belonged.  Consequently,  if  the 
mortgagor  were  dead  when  the  sale  was  made,  his  heir,  and 
not  his  executor,  might  claim  the  surplus.^  And  a  purchaser 
of  the  mortgagor's  equity  of  redemption  would  be  entitled  to 
such  surplus.^  But  if  there  are  several  mortgages,  and  the 
sale  be  made  upon  the  first  of  these,  the  holder  of  the  equity 
of  redemption  could  only  claim  the  surplus,  if  any,  which 
remained  after  satisfying  all  the  existing  mortgages."^  So  a 
sale  by  a  junior  mortgagee,  though  voidable  by  the  holder  of 
the  equity  or  by  a  later  mortgage,  if  it  includes  the  amount 
due  on  an  elder  mortgage,*  will  not  entitle  such  holder  of  the 
equity  or  later  mortgage  to  surplus  before  the  elder  mort- 
gage is  satisfied.^  But  a  purchaser  would  not  be  obliged  to 
see  to  the  application  o£  the  purchase-money.  In  one  case, 
the  wife  of  the  owner  of  an  equity  of  redemption  of  an  estate 
which  had  been  mortgaged  by  his  grantor,  with  power  of  sale, 
which  power  had  been  executed,  and  a  surplus  remained  in 
the  mortgagee's  hands,  was  held  not  to  be  entitled  to  have 
any  part  of  such  surplus  secured  to  her  by  virtue  of  her  in- 
choate right  of  dower. ^  But  the  prevailing  rule  seems  to  be 
otherwise,  and  her  share  will  be  adjusted  in  equity  on  the 
basis  of  her  chance  of  survivorship.'^  And  though  the  mort- 
gagor has  a  right  to  insist  upon  being  paid  in  money  any  sur- 
plus arising  from  the  sale  of  the  premises,  after  paying  the 

1  2  Cruise,  Dig.  79,  §  45 ;  Wright  v.  Rose,  2  Sim.  &  S.  Ch.  323.  See  Varnum 
V.  Meserve,  8  Allen,  158,  as  to  dividing  the  proceeds  of  such  sale  among  parties 
interested. 

2  Buttrick  v.  Wentworth,  6  Allen,  79  ;  or  the  lien  of  an  attacliing  creditor, 
Gardner  v.  Barnes,  106  Mass.  505 ;  Wiggin  v.  Heyward,  118  Mass.  514. 

8  Andrews  v.  Fiske,  101  Mass.  422  ;  Cook  v.  Basley,  123  Mass.  396  ;  and 
a  junior  mortgagee  may  sue  the  prior  mortgagee  for  his  part  of  the  surplus, 
ibid. 

4  Donohue  v.  Chase,  130  Mass.  137. 

6  O'Connell  v.  Kelly,  114  Mass.  97  ;  Aklen  v.  Wilkins,  117  Mass.  216  ;  Mor- 
ton V.  Hall,  118  Mass.  511. 

6  Newhall  v.  Lynn  Sav.  Bk.,  101  Jilass.  428. 

7  Ante,  §§  377,  479. 


64  MORTGAGES   WITH    POWERS    OP   SALE. 

incumbrance,  the  mortgagee  may  sell  upon  credit,  accounting 
for  sucli  surplus  in  money,  ^ 

§  1009.  Mortgagee  acts  as  Trustee.  —  The  same  rules  in 
equity  apply  in  respect  to  sales  made  by  mortgagees  under 
powers  as  are  applied  in  sales  by  trustees,  so  far  as  having  a 
right  themselves  to  become  purchasers  is  concerned.  [A 
mortgagee  cannot  purchase  at  his  own  sale  ^  so  as  to  extinguish 
the  equity  of  redemption,  even  though  the  sale  be  at  public 
auction; 2  unless  he  is  given  permission  by  statute,  or  by  the 
terms  of  the  mortgage;*]  and  it  seems  that  an  agreement  of 
pre-emption  made  simultaneously  with  the  mortgage,  whereby 
the  mortgagor  engaged  that,  if  the  estate  was  sold,  the  mort- 
gagee should  have  the  pre-emption,  may  be  good  and  enforced 
by  the  court. ^  And  courts  of  equity  will  set  aside  a  sale 
under  a  mortgage,  on  account  of  fraudulent  mismanagement, 
unfair  conduct,  or  departure  from  the  power  on  the  part  of 
the  mortgagee.^  Thus,  where  the  power  was  to  sell  the  prem- 
ises and  all  benefit  and  equity  of  redemption,  and  the  sale 
was  of  the  equity  alone,  it  was  held  to  be  void  as  not  within 
the  power. '^ 

§  1010.  Execution  of  the  Power.  — The  assignee  of  such  a 
mortgage  may  execute  the  power  without  having  recorded  the 
assignment.  And  if  he  enter  under  the  mortgage,  and  re- 
ceive rents  with  a  view  to  foreclose  it,  but  afterwards  sells 
the  estate  under  his  power,  it  will  not  affect  the  title  of 
a  purchaser  under  such  a  sale  who  is  not  cognizant  of  the 
fact  of  such  entry,  though  the  rents  thus  received,  if  they 
had  been  applied,  would  have  exceeded  the  debt.  Nor  would 
a  tender  of  the  debt  render  a  subsequent  sale  by  the  mort- 
gagee void  in  the  hands  of   an  innocent  purchaser,   unless 

1  Bailey  v.  /Etna  Ins.  Co.,  10  Allen,  286. 

2  Shew  V.  Call,  119  N.  C.  450  ;  s.  c.  26  N.  E.  Rep.  33  ;  s.  c.  56  Am.  St.  Eep. 
678. 

^  Hyndman  v.  Hj'ndman,  19  Vt.  9. 

*  Bergen  v.  Bennett,  1  Caines'  Cas.  1  ;  Mutual  Loan  &  B.  Co.  v.  Haas,  100  Ga. 
Ill  ;  s.  c.  27  S.  E.  Rep.  980  ;  s.  c.  62  Am.  St.  Eep.  317  ;  Hall  v.  Bliss,  118  Mass. 
554. 

5  Orby  V.  Trigg,  2  Eq.  Cas.  Abr.  599,  §  24. 

6  Longwith  v.  Butler,  3  Gilm.  32 ;  Drinan  v.  Kichols,  115  Mass.  353,  where  no 
notice  was  given  to  a  known  assignee. 

7  Fowle  V.  Merrill,  10  Allen,  350. 


MORTGAGES   WITH    POWERS   OF   SALE.  65 

such  tender  were  at  once  followed  by  proceedings  to  redeem 
the  estate.  The  mortgagor,  under  such  circumstances,  should 
attend  the  sale,  and  give  notice  of  the  tender.  Nor  could  he 
object  to  the  sale,  on  the  ground  that  the  mortgagee  was  the 
purchaser,  if  the  estate  had,  in  the  mean  time,  passed  into 
the  hands  of  an  innocent  purchaser.^  If  the  debt  secured  by 
the  mortgage  be  tendered  when  it  falls  due,  and  before  con- 
dition broken,  the  power  is  thereby  extinguished.  But  a 
tender  after  condition  broken  does  not  affect  the  right  in  the 
mortgagee  to  make  a  sale  under  his  power,  unless  the  mort- 
gagor, after  having  made  such  sale,  shall  have  commenced  a 
bill  in  equity  to  redeem  the  estate.  ^  And  an  innocent  pur- 
chaser will  not  be  affected  by  a  trustee,  who  in  his  deed  has 
a  general  power  of  sale,  violating  any  restrictions  imposed 
upon  him  unless  known  to  such  purchaser.^  [But  unless  the 
power  has  come  into  being  through  default  or  breach  of  con- 
dition of  the  mortgage,  even  a  bona  fide  purchaser  for  value 
will  acquire  no  title.*]  A  power  to  sell,  in  such  cases,  in- 
cludes that  of  executing  a  proper  deed  to  convey  the  estate.^ 
And  if  the  terms  of  the  power  be  to  make  the  sale  "  according 
to  law,"  it  will  be  understood  as  the  law  in  force  when  the 
sale  is  made,  rather  than  the  one  in  force  when  the  mortgage 
was  executed.^  The  power  must  be  strictly  pursued  as  to 
time,  place,  and  manner  of  sale,  or  the  sale  will  be  void.'^ 
§  1011,     Mortgagee  as  Purchaser.  —  If   the    sale    is   made  in 

1  Montague  v.  Dawes,  12  Allen,  397  ;  s.  c.  14  Allen,  364.  So  it  is  no  defect  in 
the  sale  that  the  mortgagor  did  not  see  the  advertised  notice  of  foreclosure,  or  that 
a  cash  deposit  was  required  at  the  sale,  though  not  previously  stated.  Pope  v. 
Burrage,  115  Mass.  282  ;  Model  L.  Ho.  Ass'n  v.  Boston,  114  Mass.  133  ;  King  v. 
Bronson,  122  Mass.  122  ;  nor  that  the  sale,  if  otherwise  fair,  brought  an  inadequate 
price,  ibid  ;  Wing  v.  Hayford,  124  Mass.  249. 

2  Cranston  v.  Crane,  97  Mass.  459,  465. 
8  Beatie  v.  Butler,  21  Mo.  313. 

*  Rogers  v.  Barnes,  169  Mass.  179;  s.  c.  47  N.  E.  Rep.  602  ;  s.  c.  38  L.  R.  A. 
145. 

6  Fogarty  v.  Sawyer,  17  Cal.  589. 

6  James  V.  Stull,  9  Barb.  482  ;  Conkey  v.  Hart,  14  N.  Y.  22  ;  Heyward  v.  Judd, 
4  Minn.  483. 

''  Strother  v.  Law,  54  Til.  413,  418  ;  Hall  t'.  Towne,  supra.  Thus  a  junior  mort- 
gagee has  no  right  to  sell  except  subject  to  the  prior  mortgages,  and  a  sale  at 
which  he  requires  that  they  shall  be  paid  off  is  void.  Donohue  v.  Chase,  130  Mass. 
137. 

VOL.   II. — 5 


66  MORTGAGES   WITH    POWERS   OF   SALE. 

good  faith  by  an  officer  of  the  law,  it  seems  that  the  mort- 
gagee may  himself  be  the  purchaser.  But  if,  as  trustee  of 
the  mortgagor,  as  he  would  be,  acting  under  a  power  of  sale 
to  him  as  mortgagee,  he  sell  the  estate,  directly  or  through 
bis  own  agent,  and  directly  or  indirectly  become  the  pur- 
chaser, the  mortgagor  may,  if  he  sees  fit,  avoid  such  sale 
through  the  intervention  of  a  court  of  equity.  But  the  sale 
will  be  good  until  thus  avoided.^  But  a  mortgagee  under  a 
power  of  sale  has  no  right  to  purchase  the  estate,  unless  there 
be  an  agreement  to  that  effect  in  the  mortgage  itself;  and 
this  restriction  extends  to  his  agent,  assignee,  and  trustee  ^ 
(and  see  ante^  §  1009).  The  mere  purchase  by  the  mortgagee 
of  the  mortgaged  estate  from  the  one  who  bids  it  off  at  his 
sale  will  not  affect  the  validity  of  his  title.  But  the  mort- 
gagee with  a  power  must  exercise  it  in  a  provident  way,  with 
a  due  regard  to  the  rights  and  interests  of  the  mortgagor  in 
the  surplus  money  to  be  produced  by  the  sale.  If  he  uses  his 
power  for  any  other  purpose  than  to  secure  repayment  of  his 
mortgage-money,  as,  for  instance,  to  exclude  the  mortgagor 
from  the  premises,  for  ulterior  purposes  in  the  mortgagee  or 
those  for  whom  he  acts,  it  would  be  a  fraud,  for  which  the 
court  would  set  aside  the  sale,  and  permit  the  mortgagor  to 
redeem.  And  in  the  case  cited  below,  this  was  done  after  a 
lapse  of  fifteen  years,  the  property  sold  having  been  certain 
shares  in  the  stock  of  the  "  Railway  Times. "  ^  And  similar 
doctrines  are  maintained  in  respect  to  the  sale  of  real  estate 
in  Downes  v.  Grazebrook,  where  the  Chancellor  set  aside  a 
sale  by  a  mortgagee,  where  the  purchase  was  made  by  his 
solicitor,  "although  there  was  not  the  slightest  ground  for 
imputing  to  the  defendant  either  fraud,  oppression,  or  harsh- 
ness of  conduct,  towards  the  plaintiff. "  * 

1  Downes  v.  Grazebrook,  3  Meriv.  200,  207  ;  Ramsey  v.  Merriam,  6  Minn.  168  ; 
Blockley  v.  Fowler,  21  Cal.  326  ;  Davoue  v.  Fanning,  2  Johns.  Ch.  252  ;  Michond 
V.  Girod,  4  How.  503,  553  ;  Scott  v.  Freeland,  7  Sm.  &  M.  409  ;  Jackson  v.  "Walsh, 
14  Johns.  407  ;  Patten  v.  Pearson,  57  Me.  428. 

2  Hall  V.  Towne,  45  111.  493  ;  Koberts  v.  Fleming,  53  111.  196,  200  ;  Hall  v. 
Bliss,  118  Mass.  554. 

8  Robertson  v.  Norris,  1  Giff.  421,  424. 

*  Downes  v.  Grazebrook,  3  Meriv.  200,  209.  See  also  Jenkins  v.  Jones,  2  Giff. 
99,  108. 


MORTGAGES    WITH    POWERS   OF    SALE.  67 

§  1012.  Good  Faith  required  of  Mortgagee.  —  If  One  is  in- 
trusted to  sell  property  by  another,  and  directly  or  indirectly 
becomes  himself  the  purchaser  at  such  sale,  it  is,  ipso  facto^ 
so  far  a  fraud  that  any  one  interested  in  it,  as  cestui  que  trust, 
may  avoid  it  at  his  election.  This  may  be  done  in  respect  to 
sales  by  mortgagees  except  in  cases  provided  for  by  statute, 
the  mortgagor  still  having  a  right  to  redeem  as  before  the 
sale  if  he  elects  so  to  do.  ^  By  the  statutes  of  several  of  the 
States  the  mortgagee  may  himself  be  the  purchaser,  or  he 
may  secure  this  privilege  to  himself  by  the  terms  of  the 
power  of  sale. 2  And  if  he  purchases,  this  is  in  itself  a  pay- 
ment pro  tanto  of  the  note,  though  he  refuses  to  execute  a 
deed.^  But  the  mortgagee  in  such  case  must  exercise  good 
faith  and  a  careful  regard  to  the  interests  of  his  principal, 
or  a  court  of  equity  will  set  aside  a  sale  and  purchase  made 
by  him.  When  a  party,  who  is  intrusted  with  a  power  to 
sell,  attempts  also  to  become  a  purchaser,  he  will  be  held  to 
the  strictest  good  faith,  and  the  utmost  diligence  for  the  pro- 
tection of  the  rights  of  his  principal.*  So  where  one  having 
a  mortgage  upon  a  large  and  valuable  estate,  in  order  to  fore- 
close it,  under  the  law  of  New  York,  was  about  to  sell  it,  and 
a  junior  mortgagee  requested  him  to  sell  a  part  only  of  the 
estate  which  was  sufficient  to  satisfy  the  first  mortgage  debt, 
and  offered  to  bid  and  pay  enough  to  satisfy  the  debt,  but  the 
mortgagee  refused,  and  sold  the  whole,  it  was  held  to  be  an 
invalid  sale.^    But  upon  a  purchase  by  the  mortgagee  with- 

1  Jennison  v.  Hapgood,  7  Pick.  1  ;  Downes  v.  Grazebrook,  svpra ;  Howard  v. 
Ames,  3  Met.  308  ;  Middl.  Bk.  v.  ilinot,  4  ilet.  325  ;  Benham  v.  Rowe,  2  Cal. 
387  ;  Hyndman  v.  Hyndman,  19  Vt.  9  ;  Dobson  v.  Racey,  3  Saiidf.  Ch.  60  ;  Waters 
V.  Groom,  11  CI.  &  F.  684.  Though  in  the  following  cases  the  courts  held  that 
such  a  sale  and  purchase  could  only  be  impeached  by  showing  unfairness.  Howards 
V.  Davis,  6  Tex.  174  ;  Blockley  v.  Fowler,  21  Cal.  326  ;  Hamilton  v.  Lubukee,  51 
111.  415.  In  Pvichards  v.  Holmes,  18  How.  143,  the  sale  was  made  by  an  auctioneer, 
and  the  mortgagee  bid  through  him. 

2  Montague  v.  Dawes,  12  Allen,  397  ;  Hall  v.  Bliss,  118  Mass.  554. 
8  Hood  V.  Adams,  124  Mass.  481. 

*  Montague  v.  Dawes,  14  Allen,  369;  Dyer  i;.  Shurtleff,  112  Mass.  165  ;  Long 
V.  Richards,  170  Mass.  120  ;  s.  c.  48  N.  E.  Rep.  1083  ;  s.  c.  64  Am.  St.  Rep.  281, 
holding  that  a  fraudulent  purchase  by  the  mortgagee  at  his  own  sale  could,  at  the 
election  of  the  mortgagor,  be  treated  as  a  nullity,  and  sustaining  a  bill  to  redeem 
which  asked  no  relief  from  the  foreclosure. 

6  Ellsworth  V.  Lockwood,  42  N.  Y.  89,  96. 


68  MORTGAGES   WITH    POWERS   OF   SALE. 

out  such  authority  from  the  mortgagor,  no  one  but  the  latter 
can  complain ;  ^  and  whoever  would  object  to  such  sale  must 
do  it  within  a  reasonable  time  after  it  is  made,  or  he  may  not 
do  it  at  all; 2  and  if  neither  a  statute  nor  the  terms  of  the 
power  require  the  sale  to  be  by  public  auction,  a  private  sale 
will  be  as  valid  as  one  at  auction.^  And  where  the  mortgage 
was  to  secure  several  notes,  and  the  sale  was  made  for  non- 
payment of  the  first,  it  had  the  effect  to  discharge  the  estate 
from  any  further  liability  on  account  of  the  other  notes. ^  But 
where  a  mortgagee  in  possession  under  a  power  of  sale  sold  a 
part  of  the  promises  for  a  sum  larger  than  the  amount  then 
due  upon  the  debt  secured,  it  was  held  that  he  must  apply 
the  surplus  upon  the  rest  of  his  debt,  or  pay  it  over  to  the 
mortgagor.^ 

§  1013.  Execution  of  Power  —  Statute  Regulations.  —  In 
some  of  the  States  there  are  statute  regulations  in  respect  to 
the  mode  of  making  such  sales ;  and  where  that  is  the  case,^ 
these  must  be  complied  with  in  order  to  make  the  sale  valid. 
Thus  it  has  been  held  in  New  York,  that  a  private  sale,  with- 
out notice,  would  not  bar  the  mortgagor's  equity  of  redemp- 
tion, although  in  accordance  with  the  terms  of  the  power, 
being  in  a  contravention  of  the  statute  requirements.^  But  a 
failure  to  register  the  power,  though  required  by  the  statute, 
does  not  invalidate  the  sale.'^ 

§  1014.  Power  of  Sale  works  no  other  Change  in  Mortgage.  — 
The  insertion  of  a  power  of  sale  in  a  mortgage  deed  does  not 
change  or  affect  the  mortgagor's  right  to  redeem,  so  long  as 
the  power  remains  unexecuted,^  or  the  mortgage  is  not,  as  it 

1  Edmondson  v.  Welsh,  27  Ala.  578  ;  Benham  v.  Eowe,  2  Cal.  387. 

2  Patten  v.  Pearson,  60  Me.  220  ;  Hamilton  v.  Lubukee,  51  111.  415. 

3  Davey  v.  Durrant,  1  De  Gex  &  J.  535. 

*  Smith  V.  Smith,  32  111.  198  ;  and  see  Loomis  v.  Clambey,  69  Minn.  i&2 -,  s.  c. 
72  N.  W.  Rep.  707  ;  s.  c.  65  Am.  St.  Rep.  576. 

5  Thompson  v.  Hudson,  L.  R.  10  Eq.  497 ;  McDowel  v.  Lloyd,  22  Iowa,  448, 
450. 

6  Lawrence  v.  Farm.  L.  &Tr.  Co.,  13  N.  Y.  200. 

■^  Wilson  V.  Troup,  2  Cow.  195.  In  Michigan,  the  statute  points  out  the  meas- 
ures to  be  adopted  in  executing  a  power  of  sale  in  a  mortgage,  and  provides  that 
the  mortgagor,  after  such  sale,  may  redeem  the  land  by  paying  what  it  was  bid  off 
for,  within  one  year.     Doyle  v.  Howard,  16  Mich.  264,  265. 

8  Eaton  V.  Whiting,  3  Pick.  484 ;  Turner  v.  Bouchell,  3  Har.  &  J.  99  ;  Benham 


MORTGAGES   WITH    POWERS   OF   SALE.  69 

may  be,  foreclosed  in  the  ordinary  manner. ^  Therefore,  suing 
the  mortgage  debt,  and  recovering  judgment  upon  it,  does  not 
impair  the  right  in  the  mortgagee  to  sell  the  estate  under  a 
power  of  sale  in  the  mortgage. ^  Nor  does  it  stand  in  the  way 
of  foreclosing  such  mortgage  in  the  ordinary  mode  by  judicial 
process  of  foreclosure. ^  In  Massachusetts  there  are  special 
statute  provisions  in  respect  to  foreclosing  such  mortgages  by 
sale  of  the  premises.* 

§  1015.  No  Redemption  after  Sale.  —  But  when  the  sale  has 
been  made,  the  interest  of  the  mortgagor  is  wholly  divested, 
including  all  right  of  redemption.^  Thus,  where  a  mortgagee 
in  1868,  under  a  mortgage  with  a  power  of  sale  dated  in  1866, 
made  a  sale  and  conveyance,  it  was  held  to  give  the  purchaser 
a  title  prior  to  that  of  a  deed  made  by  the  mortgagor  in  1867.*^ 
And  if  a  mortgaged  estate  be  sold  to  satisfy  an  instalment  of 
the  debt  secured  by  it,  the  estate  is  thereby  discharged  from 
the  mortgage  lien,  and  the  purchaser  acquires  an  absolute 
title  to  the  same.'^  Nor  does  a  conveyance  by  the  mortgagor, 
and  an  exclusive  possession  by  his  grantee,  work  a  disseisin 
as  to  the  mortgagee,  or  affect  his  right  to  sell  the  premises 
under  the  power  in  his  mortgage.^  In  order,  however,  to  pro- 
duce this  effect,  the  essential  requisites  of  the  power  must  be 
complied  with,  since,  unless  that  is  done,  the  sale  will  not 
pass  any  title  to  the  purchaser.^     This  power  of  sale  is  a  part 

V.  Rowe,  2  Cal.  387  ;  Michoud  v.  Girod,  4  How,  503,  556  ;  Mapps  v.  Sharpe,  32  111. 
13,  21. 

1  Carradiue  v.  O'Connor,  21  Ala.  573.  The  power  of  sale  being  a  cumulative 
remedy,  not  affecting  the  jurisdiction  of  chancery.  Walton  v.  Cody,  1  Wis.  420  ; 
Cormerais  v.  Genella,  22  Cal.  116. 

2  Hewitt  V.  Templeton,  48  111.  367. 

3  First  Nat,  Ins.  Co.  v.  Salisbury,  130  Mass.  303  ;  Morrison  v.  Bean,  15  Tex. 
267;  Butler  v.  Ladue,  12  Mich.  173;  12  Am.  Law  Reg.  248.  See  Heyward  v.  Judd, 
4  Minn.  483,  493-495. 

*  Mass.  Pub.  Stat.  c.  118,  §§  14-20  ;  Childs  v.  Dolan,  5  Allen,  319. 

5  Kinsley  v.  Ames,  2  Met.  29  ;  Eaton  v.  Whiting,  3  Pick,  484 ;  Turner  v.  John- 
son, 10  Ohio,  204  ;  Bloom  v.  Van  Rensselaer,  15  111.  503  ;  Jackson  v.  Henry,  10 
Johns.  185. 

6  Lydston  v.  Powell,  101  Mass.  77. 

■^  Poweshiek  v.  Dennison,  36  Iowa,  244  ;  Codwise  v.  Tajdor,  4  Snoed,  346,  349  ; 
Loomis  V.  Clambey,  69  Minn.  469  ;  s.  c.  72  N.  W.  Rep.  707  ;  s.  c.  65  Am.  St.  Rep. 
576. 

8  Sheridan  v.  Welch,  8  Allen,  166. 

9  Ormsby  v.  Tarascon,   3  Lit.  404  ;   Ivy  v.  Gibert,  2  P.  Wms.    13 ;  Mills  v. 


70  MORTGAGES    WITH   POWERS   OF   SALE. 

of  the  mortgagee's  security,  an  interest  in  land,  and  is  pro- 
tected against  a  prior  unregistered  deed.^  So  an  assignment 
of  a  mortgage  is  an  assignment  of  a  power  of  sale  contained 
in  it.  2 

§  1016.  Extinguishment  of  the  Power.  —  But  SUCh  pOwer  is 
extinguished  by  the  payment  of  the  mortgage  debt,  even 
against  a  bona  fide  purchaser. ^  And  a  tender  of  the  debt 
and  costs  secured  by  a  prior  mortgage,  by  the  holder  of  a 
subsequent  one,  extinguishes  the  power  of  sale  in  the  first.* 
In  a  subsequent  case,  the  court,  commenting  upon  the  doc- 
trine of  Cameron  v.  Irwin,  limit  it  to  this  extent:  If  the 
mortgage  be  paid,  and  then  the  mortgagee,  without  notice  to 
the  mortgagor,  proceeds  to  sell,  the  sale  would  be  void,  even 
against  a  bona  fide  purchaser.  But  if  the  mortgagor,  know- 
ing of  the  sale,  stand  by  and  allow  it  to  be  made  without  ob- 
jection, he  would  be  barred  by  it.  And  this  doctrine,  thus 
limited,  is  applied  to  all  cases  of  sales  for  purposes  of  fore- 
closure and  purchases  made  bona  fide.  The  title  thereby 
acquired  will  be  valid  though  the  mortgage  may  have  been 
paid,  provided  subsequent  incumbrancers,  or  persons  having 
an  interest  in  the  estate,  and  knowing  of  such  process,  neg- 
lect to  make  defence  to  it,  though  parties  who  were  not  noti- 
fied might  object  to  the  validity  of  the  sale.^  It  was  held  in 
Jenkins  v.  Jones  that  a  sale  made  by  a  mortgagee  under  a 
mortgage,  with  power  of  sale,  after  a  tender  by  the  mortgagor 
of  the  debt  due,  would  be  set  aside  as  oppressive  by  the  court, 
if  it  could  be  done  without  injustice  to  the  purchaser.  If, 
however,  circumstances  which  put  in  question  the  propriety 

Banks,  3  P.  "Wms.  1.  Thus,  where  a  mortgagee  was  authorized  upon  default  to 
enter,  take  possession,  and  sell  the  premises,  a  sale  before  making  and  entry  and 
taking  or  demanding  possession  was  invalid.  Koarty  v.  Mitchell,  7  Gray,  243  ; 
Simson  v.  Eckstein,  22  Cal.  580  ;  Jackson  v.  Clark,  7  Johns.  217,  226  ;  Denning 
t;.  Smith,  3  Johns.  Ch.  332,  345. 

1  Bell  V.  Twilight,  22  N.  H.  500  ;  Beatie  v.  Butler,  21  Mo.  313  ;  Bunce  v. 
Reed,  16  Barb.  347. 

2  Slee  V.  Manhattan  Co.,  1  Paige,  48. 

8  Cameron  v.  Irwin,  5  Hill,  272 ;  Charter  v.  Stevens,  3  Denio,  33  ;  Lowe  v. 
Grinnan,  19  Iowa,  193. 

*  Burnet  v.  Denniston,  5  Johns.  Ch.  35.  See  Jenkins  v.  Jones,  2  Giff.  99  ; 
Cranston  v.  Crane,  97  Mass.  459  ;  ante,  §  1012. 

5  Warner  v.  Blakeman,  36  Barb.  501,  517. 


MORTGAGES   WITH   POWERS   OP   SALE.  71 

of  the  sale  are  brought  to  his  knowledge,  and  he  purchases 
with  that  knowledge,  he  becomes  a  party  to  the  transaction 
which  is  impeached.  This  knowledge  on  the  part  of  the  pur- 
chaser puts  him  in  exactly  the  same  situation  as  the  persons 
from  whom  he  was  about  to  purchase.  But  in  that  case  the 
sale  was  set  aside,  although  the  plaintiff's  bill  for  the  pur- 
pose was  not  filed  till  twelve  months  after  the  sale.^ 

1  Junkius  V.  Jones,  2  Gilf.  99,  108. 


72  TRUST   MORTGAGES. 


CHAPTER  XLIII. 

TRUST   MORTGAGES. 

§  1017.    Nature  of  trust  mortgages. 

1018.  Execution  of  the  power  of  sale. 

1019.  Rights  of  grantor,  duties  of  trustee. 

1020.  To  secure  future  advances. 

1021.  Payment  of  debt,  extinguishment  of  power. 

1022.  Trustees  held  to  strict  impartiality. 

§  1017.  Nature  of  Trust  Mortgages.  —  Connected  with  the 
subject  of  mortgages  with  powers  of  sale  is  that  of  deeds  of 
trust  in  the  nature  of  mortgages,  where  the  deed,  instead  of 
being  made  to  the  mortgagee  himself,  is  made  to  some  third 
person  or  persons,  containing  the  declaration  of  trust,  which 
the  trustees,  by  accepting  it,  become  bound  to  execute.  The 
terms  of  this  trust  are,  usually,  that  the  trustee  shall  recon- 
vey  to  the  grantor,  upon  his  performing  that  which  it  is  in- 
tended to  secure,  or,  upon  failure  thereof,  to  sell  the  estate, 
and  apply  the  proceeds  in  satisfaction  of  such  default.  Trust 
deeds  of  this  kind  are  often  employed  in  cases  where  railroad 
and  other  large  corporations  wish  to  raise  moneys  upon  the 
security  of  their  property,  and  are  not  infrequent  in  many  of 
the  States  as  a  mode  of  securing  the  performance  of  condi- 
tions in  the  place  of  formal  mortgages.  Though  of  the  nature 
of  mortgages,  and  by  some  of  the  cases  treated  as  identical 
with  them,i  the  better  opinion  seems  to  be  that  they  are 
rather  like  mortgages  than  mortgages  in  fact.  If  such  a 
mortgage  is  given  to  secure  several  notes,  and  one  of  them 

1  Sargent  v.  Howe,  21  111.  148;  Hannah  w.  Carrington,  18  Ark.  85;  Wood- 
ruffs. Robb,  19  Ohio,  212  ;  Coe  v.  McBrown,  22  Ind.  252  ;  Coe  i;.  Johnson,  18 
Ind.  218  ;  Richards  v.  Holmes,  18  How.  143  ;  Thornton  v.  Boyden,  31  111.  200  ; 
U.  M.  L.  I.  Co.  V.  White,  106  111.  67  ;  Shillaber  v.  Robinson,  97  U.  S.  68;  New- 
man V.  Samuels,  17  Iowa,  528.  See  also  a  full  and  learned  article  by  Judge 
Dilloi\,  of  Iowa  Supreme  Court,  upon  trust  mortgages  and  mortgages  with  powers 
of  sale.     11  Am.  Law  Reg.  641-658. 


TRUST   MORTGAGES.  73 

is  assigned,  it  is  an  equitable  assignment  of  the  security  also 
pro  rata.^  Thus,  it  is  uniformly  held  wherever  they  have 
been  adopted,  that  such  deeds  vest  in  the  trustee  an  actual 
legal  estate,  and  not  a  mere  mortgagee's  lien.^  But  by  stat- 
ute in  Mississippi,  if  the  title  of  the  cestui  que  trust  is  superior 
to  the  legal  title,  the  holder  thereof  shall  only  enforce  his 
right  through  a  court  of  equity,  whereas  in  ejectment  it  is 
the  legal  title  only  that  is  in  issue.  ^ 

§  1018.  Execution  of  the  Power  of  Sale.  —  It  is  Competent 
for  the  grantor,  in  a  deed  of  trust  mortgage,  to  authorize  the 
trustee  to  sell  the  estate,  or,  in  a  certain  prescribed  contin- 
gency, to  have  this  power  executed  by  another,  and  a  deed  by 
the  latter  may  pass  a  good  title.  As  where  the  debtor  made 
a  deed  of  trust  by  way  of  mortgage  to  a  trustee,  with  power 
of  sale,  and  provided  that  if  the  trustee  was  absent  the  sheriff 
of  the  county  might  proceed  to  sell  for  the  payment  of  the 
debt,  and  he  did  so,  it  was  held  a  good  execution  of  the 
power.*  But  where  the  deed  was  to  such  trustee  to  have  and 
to  hold,  to  him,  his  heirs,  executors,  and  assigns,  and  he  con- 
veyed the  estate  to  another  to  act  as  trustee  in  executing  the 
trust  by  making  sale  of  the  same,  it  was  held  that  he  had  no 
right  to  make  such  conveyance,  nor  to  clothe  another  by  dele- 
gation with  the  power  of  making  the  sale  in  execution  of  the 
trust.  ^ 

§  1019.  Rights  of  Grantor,  Duties  of  Trustee.  —  The  terms 
of  the  deed  fix  the  rights  of  the  grantor  as  to  redemption  of 
the  estate,  as  well  as  the  rights  and  duties  of  the  trustee  in 
doing  what  answers  to  a  foreclosure  of  the  same  by  a  sale  of 
the  premises.  And  courts  may  enforce  this  sale  even  where 
they  have  no  general  authority  to  cause  sales  to  be  made  for 
the  purpose  of  foreclosing  mortgages.^     The  test  as  given  in 

1  Chappel  V.  Allen,  38  Mo.  213. 

2  Devin  v.  Heudershott,  32  Iowa,  192. 
8  Heard  v.  Baird,  40  Miss.  793. 

*  McKnight  v.  Wimer,  38  Mo.  132,  overruling  Miller  v.  Evans,  35  "Mo.  45. 

6  Whittelsey  v.  Hughes,  39  Mo.  13.  20  ;  Real  v.  Blair,  33  Iowa,  318. 

«  Reece  v.  Allen,  5  Gilni.  236,  240  ;  Bradley  v.  Chester  V.  R.  R.,  36  Penn.  St. 
141;  Koch  I).  Briggs,  14  Cal.  256,  263  ;  Sampson  v.  Pattison,  1  Hare,  533  ;  New- 
man V.  Jackson,  12  Wheat.  572  ;  Brown  v.  Bartoe,  10  Sm.  &  M.  268,  275;  Bris- 
bane V.  Stoughton,  17  Ohio,  482  ;  Pettit  v.  Johnson,  15  Ark.  55,  53  ;  Marvin  v. 
Titsworth,  10  Wis.  320,  328 ;  Heard  v.  Baird,  40  Miss.  793,  796. 


74  TRUST  MORTGAGES. 

one  of  the  cases  is,  if  the  trust  is  to  be  executed  by  the  cred- 
itor, it  is  a  mortgage.  If  by  a  third  party,  it  is  a  trust.  ^  It 
has  accordingly  been  held  that,  after  making  such  a  deed, 
the  grantor  has  nothing  in  the  estate  conveyed  which  is  the 
subject  of  levy  in  favor  of  an  execution  creditor. ^  If,  how- 
ever, the  debt  has  been  paid  in  full,  the  grantor's  equitable 
right  is  something  which  may  be  levied  upon,  or  the  pur- 
chaser may  reach  the  estate  through  a  court  of  equity.  But 
the  payment  of  the  debt  does  not,  of  itself,  revest  the  legal 
title  in  the  grantor,  without  a  release  or  satisfaction  entered 
of  record,  or  a  reconveyance.^  The  trustee  may  foreclose 
without  the  aid  of  the  court,  upon  complying  with  the  terms 
of  the  deed  in  making  the  sale.  And,  if  he  declines  to  do 
so,  he  may  be  compelled  to  execute  the  trust  by  the  inter- 
vention of  the  court.  ^  And  if  one  of  two  or  more  trustees 
appointed  under  such  a  deed  of  trust  die  before  the  trusts  are 
executed,  the  trust  survives,  and  may  be  executed  by  the 
survivors.^ 

§  1020.  To  secure  Future  Advances.  —  These  trust  mort- 
gages may  be  made  to  secure  future  advances  as  well  as  pres- 
ent loans.  In  Ashhurst  v.  Montour  Iron  Co.,  the  deed  was 
to  secure  the  payment  of  bonds  yet  to  be  made,  which  the 
company,  the  grantors,  were  to  dispose  of  in  market,  and  in 
the  deed  the  trustees  were  authorized  to  sell  the  estate 
either  with  or  without  process  of  court.  In  Koch  v.  Briggs, 
there  was  a  loan  of  money  payable  at  a  specified  time.  The 
borrower,  to  secure  this,  made  a  deed  of  trust,  by  which 
the  trustee,  upon  failure  of  payment  by  the  grantor,  was, 
upon  the  application  of  the  creditor,  the  cestui  que  trusty  to 
make  sale  in  a  manner  prescribed,  and  out  of  the  proceeds  to 
pay  the  sum  loaned.  The  court  held  that  no  process  would 
lie  for  foreclosing  the  estate,  either  according  to  the  common 

1  Marvin  v.  Titsworth,  supra. 

2  Mclntyre  v.  Agricultural  Bk.,  1  Freem.  Ch.  (Miss.)  105  j  Pettit  v.  Johuson, 
supra;  Morris  v.  Way,  16  Ohio,  469. 

8  Heard  v.  Baird,  40  Miss.  796,  799. 

*  Leffler  v.  Armstrong,  4  Iowa,  482 ;  Bradley  u.  Chester  V.  R.  R.,  36  Penn. 
St.   141. 

5  Hannah  v.  Carrington,  18  Ark.  85  ;.  Peter  v.  Beverly,  10  Pet.  532,  565  ; 
Franklin  v.  Osgood,  14  Johns.  527,  553. 


TRUST   MORTGAGES.  75 

law  mode,  as  it  may  be  called,  of  strict  foreclosure  in  equity, 
nor  that  of  the  State  in  which  the  land  lay,  by  a  decree  of 
sale  of  the  premises,  because  whatever  was  to  be  done  must 
be  based  upon  the  agreement  of  the  parties,  which  equity 
could  only  enforce  by  compelling  the  execution  of  the  trust. 
Nor  could  there  be  an  equity  of  redemption  if  the  trust  were 
executed,  for,  there  being  no  forfeiture,  there  was  nothing  to 
relieve  against.  The  trust,  moreover,  in  such  cases,  is  not 
between  the  debtor  and  creditor,  but  between  the  debtor  or 
mortgagor  and  the  trustee,  and  the  creditor  or  mortgagee  and 
the  trustee  respectively. ^ 

§  1021.  Payment  of  Debt,  Extinguishment  of  Power.  —  The 
property  being  held  in  trust,  first,  for  the  payment  of  the 
debt,  second,  for  the  grantor,  a  sale  by  the  trustee,  after  a 
satisfaction  of  the  debt,  would  be  void,  the  trust  being  thereby 
so  far  rendered  null.^ 

§  1022.  Trustees  held  to  Strict  Impartiality.  —  As  a  conse- 
quence of  this  double  character  in  the  trust  in  such  cases, 
trustees  are  considered  the  agents  of  both  parties,  debtor  and 
creditor,  and  their  action  in  performing  the  duties  of  their 
trust  should  be  conducted  with  the  strictest  impartiality  and 
integrity,  and  courts  of  equity  watch  their  proceedings  with 
a  jealous  and  scrutinizing  eye.^  It  has  been  generally  held, 
therefore,  that  he  cannot  become  a  purchaser  of  the  estate; 
and  whether  the  creditor  in  whose  favor  the  trust  is  created 
can  become  a  purchaser  at  a  sale  thereof  at  auction  or  not, 
has  been  variously  held,  depending  upon  whether,  in  making 
such  sale,  the  trustee  acted  independently  of  any  control  or 
direction  of  the  creditor,  as  well  as  fairly,  or  whether  the 
creditor  had  the  power  to  control  the  sale.* 


1  Wilson  V.  Russell,  13  MJ.  494,  536  ;  Ashhurst  v.  Montour  Ir.  Co.,  35  Penn. 
St.  30  ;  Bradley  v.  Chester  V.  R.  R.,  sitpra  ;  Koch  v.  Briggs,  14  Cal.  256. 

2  Lowe  V.  Grinnan,  19  Iowa,  193,  197  ;  Heard  v.  Baird,  40  Miss,  793,  798  ; 
Thornton  v.  Boyden,  31  111.  200,  210. 

8  Goode  V.  Comfort,  39  Mo.  213  ;  Equit.  Tr.  Co.  v.  Fisher,  106  111.  189  ; 
Sherwood  v.  Saxton,  63  Mo.  78. 

*  Davoue  v.  Fanning,  2  Johns.  Ch.  252  ;  Iddings  v.  Bruen,  4  Sandf,  Ch,  223 ; 
Thornton  v.  Irwin,  43  Mo.  153  ;  Bloom  v.  Van  Kensseiaer,  15  111.  503  ;  Richards 
V.  Holmes,  18  How.  143  ;  Wade  v.  Harper,  3  Ycrg.  383  ;  Ex  parte  Hughes,  Ex  parte 
Lyons,  6  Ves.  617. 


76  EQUITABLE   MORTGAGES. 


CHAPTER  XLIV. 

EQUITABLE   MORTGAGES. 

§  1023.  Security  by  deposit  of  title-deeds. 

1024.  What  necessary  to  create  a  lieu  thereby. 

1025.  Equitable  v.  legal  mortgagee  —  ^Notice. 

1026.  Vendor's  lien  for  purchase-money. 

1027.  Who  affected  by  vendor's  lien. 

1028.  Vendor's  lien  in  the  United  States. 

1029.  Vendor's  lien  not  an  estate. 

1030.  Who  affected  by  vendor's  lien. 

1031.  Lien  paramount  to  dower. 

1032.  As  affecting  creditors. 

1033.  As  affecting  purchasers  from  vendee. 

1034.  Vendor's  lien  purely  equitable. 

1035.  Waiving  the  lien. 

1036.  Vendor's  lieu,  in  whose  favor  arises. 

1037.  Assigivibility  of  vendor's  lien. 

1038.  Vendor's  lien  denied  in  certain  cases. 

1039.  Vendee's  lien  for  title. 

1040.  Vendee's  lien,  how  enforced. 

§  1023.  Security  by  Deposit  of  Title-deeds.  —  Besides  the 
mortgages  which  have  been  above  described,  there  are  two 
species  of  liens  upon  real  estate  recognized  by  equity  as  a 
security  for  the  payment  of  money,  and  treated  in  the  light 
of  equitable  mortgages.  One  of  these  is  created  by  a  deposit 
of  the  title-deeds  of  an  estate  with  the  lender  of  money.  The 
other  is  raised  in  favor  of  a  vendor  of  real  estate  as  security 
for  the  purchase-money  due  from  the  purchaser,  ^  In  respect 
to  the  first,  equity  regards  it  as  an  agreement  to  make  a  mort- 
gage by  the  borrower  to  the  lender,  when  he  deposits  his  title- 

1  Besides  these  there  are  many  agreements,  written  and  oral,  or  implied  from 
circumstances,  from  which  equity  will,  if  a  security  was  intended  to  be  created, 
establish  a  mortgage,  when  these  were  insufficient  for  that  effect  at  law.  Payne  v. 
Wilson,  74  N.  Y.  348  ;  Ee  Howe,  1  Paige,  125 ;  Daggett  v.  Rankin,  31  Cal.  321, 
326.  These  do  not,  however,  admit  of  such  further  defined  classification  as  to 
render  their  discussion  appropriate  to  this  work.  See  1  Jones,  Mortg.  c.  5  ; 
ante,  §§  980,  982. 


EQUITABLE   MORTGAGES.  77 

deeds  with  him  as  security  for  the  loan,  and  will  enforce  it 
against  the  mortgagor  and  all  persons  claiming  under  him 
with  notice.^  This  doctrine  of  creating  a  lien  in  the  nature 
of  a  mortgage,  by  a  simple  deposit  of  the  title-deeds  of  an 
estate,  has  been  strongly  opposed  by  many  able  jurists.  Lord 
Eldon  esteemed  it  as  a  practical  repeal  of  the  statute  of 
frauds.  2 

§  1024.  What  necessary  to  create  a  Lien  thereby.  —  To  give 
the  effect  of  a  lien  to  the  possession  of  title-deeds,  it  must  be 
shown  affirmatively  that  they  were  deposited  as  a  bona  fide, 
present,  immediate  security.  If  left,  for  instance,  with  the 
attorney  for  the  purpose  of  his  drawing  a  mortgage  which 
had  been  agreed  upon  by  the  parties,  it  will  not  be  sufficient. 
Mere  possession  even  by  a  creditor  is  not  enough.^  Nor  can 
such  a  lien  avail  against  an  actual  bona  fide  registered  mort- 
gage by  one  without  notice,  though  against  a  creditor  who 
subsequently  levies  his  execution  it  may.^ 

§  1025.  Equitable  v.  Legal  Mortgagee  —  Notice.  —  The  bur- 
den of  proof  is  upon  the  equitable  mortgagee  to  prove  notice 
on  the  part  of  the  subsequent  legal  mortgagee.  What  will 
amount  to  notice  depends  upon  the  circumstances  of  the  case. 
It  is  said  that,  if  the  owner's  title-deeds  are  in  the  hands  of 
his  solicitor,  a  deposit  of  a  single  title-deed,  with  an  intent 
thereby  to  create  a  security  on  the  whole  estate,  would  be 
sufficient.^     But  where  one  owning  lands  deposited  his  title- 

1  Story,  Eq.  Jur.  §  1020  ;  Russel  v.  Russel,  1  Bro.  Ch.  269,  and  Perkins'  note 
and  cases  cited.  This,  in  1783,  was  the  first  case  in  which  the  law  was  stated. 
Ex  parte  Langston,  17  Ves.  227  ;  Pain  v.  Smith,  2  Mylne  &  K.  417;  Mandeville 
V.  Welch,  5  Wheat,  277.  It  is  not  necessary  that  the  deed  deposited  should,  in 
order  to  create  an  equitable  mortgage,  show  a  good  title  in  the  depositor.  Roberts 
V.  Croft,  24  Beav,  223  ;  Edge  v.  Worthington,  Cox,  211  ;  Ex  parte  Coming,  9  Ves. 
115,  and  cases  cited  in  note. 

2  Ex  parte  Whitbread,  19  Ves.  209.  See  also  Ex  parte  Haigh,  11  Ves.  403; 
Ex  parte  Hooper,  19  Ves.  477  ;  Norris  v,  Wilkinson,  12  Vea.  192. 

8  Norris  v.  Wilkinson,  12  Ves.  192;  Bozon  v.  Williams,  3  Younge  k  J.  150; 
Mandeville  v.  Welch,  5  Wheat.  277  ;  Chapman  v.  Chapman,  13  Beav.  308  ; 
Story,  Eq.  Jur.  §  1020  ;  2  Crabb,  Real  Prop.  851.  But  see  Ex  parte  Edwards, 
1  Deac.  611. 

<  Story,  Eq.  Jur.  §  1020;  Hall  v.  McDuff,  24  Me.  311  ;  Whitworth  v.  Gaugain, 
3  Hare,  416  ;  Story,  Eq.  §  1503  b. 

5  Ex  parte,  Chippendale,  2  Mont.  &  A.  299  ;  Ex  parte  Wetherell,  11  Ves.  398, 
For  cases  illustrative  of  what  would  amount  to  notice,  see  Hiem  v.  Mill,  13  Ves, 


78  EQUITABLE   MORTGAGES. 

deeds  with  his  bankers  as  security  for  a  loan,  and  then  en- 
tered into  a  marriage  settlement  with  the  woman  he  was 
about  to  marry,  covering  these  lands,  and  her  solicitor,  upon 
inquiring  for  these  deeds,  was  told  they  had  been  deposited 
with  the  owner's  bankers  for  safe  custody,  it  was  held  that  it 
was  such  negligence  on  her  part  in  not  pursuing  the  inquiry 
further,  that  she  could  not  set  up  the  claim  of  a  bona  fide  pur- 
chaser without  notice  against  the  banker's  lien  for  money 
lent.i* 

§  1026.  The  Vendor's  Lien  for  the  Purchase-money  rests  upon 
the  ground  that  the  purchaser,  in  such  case,  is  trustee  for  the 
vendor  until  the  purchase-money  is  paid.^ 

§  1027.  Who  affected  by  Vendor's  Lien.  —  This  right  affects 
all  purchasers  having  notice  of  its  existence, ^  and  the  vendor 
may,  by  virtue  of  it,  enter  and  take  the  profits  of  the  estate 
like  a  mortgagee.*  If  the  transaction  between  the  original 
parties  be  a  contract  of  sale  only,  and  the  purchaser  mortgage 
the  estate  to  a  third  person  who  puts  his  deed  upon  record, 
the  mortgage  so  far  has  effect,  that  the  mortgagee  has  a  right 
to  purchase  at  the  price  agreed;  and  if  the  original  parties 
rescind  their  contract,   and  the  vendor  sell  to  another,    he 

*  Note.  —  The  power  to  create  this  kind  of  lien  has  been  expressly  repudiated 
in  Pennsylvania,  Tennessee,  and  Kentucky.  Stiauss's  Appeal,  49  Penn.  St.  3.53  ; 
Kauffelt  V.  Bower,  7  S.  &  R.  64  ;  Meador  v.  Meador,  3  Heisk.  562  ;  Vanmeter  v. 
McFaddin,  8  B.  Mon.  437.  It  seems  to  be  recognized,  though  not  applied,  in 
Maine.  Reed  v.  Reed,  75  Me.  264.  It  is  denied  in  Mississippi  with  an  intimation 
that  such  a  lien  might  be  valid  under  their  statute  of  frauds  for  one  year.  Gothard 
V.  Flynn,  25  Miss.  58.  It  is  sustained  or  recognized  in  the  following  cases  :  Mounce 
V.  Byars,  16  Ga.  469,  where  it  was  po.stponed  to  a  vendor's  lien  ;  Robinson  v. 
Urquhart,  12  N.  J.  Eq.  515  ;  GrifRn  v.  Griffin,  18  N.  J.  Eq.  104  ;  Gale  v.  Morris, 
29  N.  J.  Eq.  222  ;  Carpenter  v.  O'Dougherty,  67  Barb.  397  ;  Carpenter  v.  Bl.  Hawk 
Gold  Mining  Co.,  65  N.  Y.  43  ;  Hackett  v.  Reynolds,  4  R.  I.  512;  Jarvis  v. 
Dutcher,  16  Wis.  307.  It  is  denied  in  Nebraska  as  contrary  to  the  statute  of  frauds. 
Bloomfield  State  Bank  v.  Miller,  55  Neb.  243  ;  s.  c.  75  N.  W  Rep.  569. 

114  ;  Hewitt  v.  Loosemore,  21  L.  J.  K.  s.  Ch.  69  ;  Head  v.  Egerton,  3  P.  Wms. 
279 ;  Adams,  Eq.  123  ;  Story,  Eq.  Jur.  §  1020. 

1  Maxfield  v.  Burton,  L.  R.  17  Eq.  15. 

2  Walker,  Am.  Law,  315  ;  Mackreth  v.  Symmons,  15  Ves.  329  ;  Chapman  v. 
Tanner,  1  Vem.  267 ;  Blackburn  v.  Gregson,  1  Bro.  C.  C.  420,  and  Perkins'  notes  ; 
Story,  Eq.  Jur.  §  1217  ;  2  Crabb,  Real  Prop.  852  ;  Coote,  Mortg.  218. 

8  Cator  V.  Pembroke,  1  Bro.  C.  C.  301,  302  and  note. 

*  Irwin  V.  Davidson,  3  Ired.  Eq.  311,  319. 


EQUITABLE   MORTGAGES.  79 

takes  the  estate  subject  to  this  right  in  the  first  mortgagee.^ 
But  a  mere  recital  in  a  vendor's  deed  that  the  purchase- 
money  is  unpaid  would  not  bind  subsequent  purchasers,  un- 
less the  payment  of  the  purchase-money  is  expressly  charged 
upon  the  purchaser. ^ 

§  1028.  Vendor's  Lien  in  the  United  States.  —  [The  doctrine 
of  an  implied  lien  for  the  unpaid  purchase  price  of  land  has 
been  wholly  rejected  in  Maine,^  Massachusetts,*  Pennsyl- 
vania,^ North  Carolina,^  South  Carolina, ^  Nebraska, ^  Kansas,^ 
Oregon,^*'  and  Washington ;  ^^  but  even  in  these  States  a  ven- 
dor's lien  may  be  expressly  reserved  in  writing. ^^  j^  Con- 
necticut, ^^  New  Hampshire,  1*  and  Delaware,  ^^  the  courts  have 
evaded  the  question.  In  California,  ^^  North  Dakota,  i""  and 
South  Dakota,  1^  the  existence  of  the  lien  is  declared  by  stat- 
ute. In  Vermont,^^  Georgia,^*^  Virginia,^^  West  Virginia,22  and 
Iowa, 23  it  has  been  abolished  by  statute.]     But  in  the  major- 

1  A] den  V.  Garver,  32  111.  32. 

a  Hiester  v.  Green,  48  Penn.  St.  102;  Heist  v.  Baker,  49  Penn.  St.  9  ;  Strauss' 
Appeal,  49  Penn.  St.  358. 

8  Phil  brook  v.  Delano,  29  Me.  410. 
*  Ahrend  v.  Ordiorne,  118  Mass.  261. 
6  Hepburn  v.  Snyder,  3  Penn.  St.  72. 

6  Womble  v.  Battle,  3  Ired.  Eq.  182. 

7  Wragg  V.  Comptroller-Gen.,  2  Desauss.  Eq.  509. 

8  Edininster  v.  Higgins,  6  Neb.  265  ;  Ansley  v.  Pasabro,  22  Neb.  662  ;  s.  c.  35 
K  W.  Kep.  885. 

9  Trustees',  Executors',  &  Secur.  Ins.  Co.  v.  Bowling,  2  Kan.  App.  770  ;  s.  c.  44 
Pac.  Rep.   42. 

15  Frame  v.  Sliter,  29  Oreg.  121 ;  s.  c.  45  Pac.  Rep.  290. 

11  Smith  V.  Allen,  18  Wash.  1  ;  s.  c  50  Pac.  Rep.  783  ;  s.  c.  63  Am.  St.  Rep. 
864. 

12  Bear  v.  Whisler,  7  Watts,  144  ;  Trustees',  etc.  v.  Bowling,  supra;  Smith  v. 
Allen,  supra. 

18  Chapman  v.  Beardsley,   31  Conn.  115. 
1*  Arlin  v.  Brown,  44  X.  H.  102. 

15  Budd  V.  Busti,  1  Har.  (Del.)  69. 

16  Deering's  Civ.  Code,  §  3046. 
1'^  Rev.  Codes,  §  4830. 

18  Ann.  Stat.  §  5639. 

19  Stat.  §  2223.  , 

20  Code,  §  2823. 

21  Code,  §  2474.     But  it  may  be  reserved  on  the  face  of  the  conveyance. 

22  Code,  p.  698.     But  it  may  be  reserved  on  the  face  of  the  conveyance. 

23  Code,  §  2924. 


80  EQUITABLE   MORTGAGES. 

ity  of  States,  the  courts  regard  this  lien  as  an  equitable  in- 
cident to  all  conveyances  where  the  purchase -money  has  not 
been  paid.  1  The  extent  to  which  it  is  applied  varies.  It  has 
been  held  to  exist  though  the  purchaser  be  2^  feme  covert,  as  it 
does  not  depend  on  her  capacity  to  make  a  contract. ^  In 
other  States  it  is  treated  as  a  simple  equitable  mortgage ;  ^ 
and  others  still,  while  they  do  not  hold  it  as  a  mortgage, 
ascribe  to  it  most  of  the  incidents  of  a  mortgage ;  though 
being  merely  a  claim  for  a  debt,  it  can  only  be  enforced  as 
long  as  the  debt  can  be.*  In  Maryland  it  was  applied  in  case 
of  a  sale  by  one  parcener  of  her  interest  in  the  estate  to  an- 
other parcener.^  And  in  Mississippi  it  was  applied,  although 
the  vendee  did  not  hold  by  deed  directly  from  the  one  who  set 
up  the  lien  as  vendor.  As  where  A  gave  land  to  B  by  parol, 
and  B  sold  by  parol  to  C,  to  whom  A,  by  B's  request,  made  a 
deed,  C  having  failed  to  pay  the  purchase-money,  it  was  held 
that  B  had  a  vendor's  lien  upon  the  premises.^  In  Maryland 
it  passes  to  the  executor,  and  not  to  the  heir  of  the  vendor, 
and  the  same  in  Illinois  and  some  other  States.  ^ 

§  1029.  Vendor's  Lien  not  an  Estate.  —  The  editors  of  the 
American  edition  of  the  Leading  Cases  in  Equity  regard  this 
incidental  right  of  a  vendor  as  not  being  a  lien,  until  his  bill 

1  Skaggs  V.  Nelson,  25  Miss.  88  ;  Moreton  v.  Harrison,  1  Bland,  491  ;  Ingle- 
hart  V.  Armiger,  1  Bland,  519  ;  Pintard  v.  Goodloe,  Hempst.  U.  S.  C.  C.  502  ; 
Tobey  V.  McAllister,  9  Wis.  463  ;  Francis  v.  Wells,  2  Col.  660  ;  Ford  v.  Smith, 
1  McArthur,  592  ;  Rice  v.  Rice,  36  Fed.  Rep.  858  ;  Wright  v.  Troutman,  81  111. 
374 ;  McKeown  v.  Collins,  38  Fla.  276  ;  8.  c.  21  So.  Rep.  103  ;  Knight  v.  Knight, 
113  Ala.  597;  8.  c.  21  So.  Rep.  407  ;  Yaryan  v.  Shriner,  26  Ind.  364  ;  Emison  v. 
Risque,  9  Bush,  24  ;  Payne  v.  Avery,  21  Mich.  524  ;  Pratt  v.  Clark,  57  Mo.  189  ; 
Corlies  v.  Rowland,  26  N.  J.  Eq.  311  ;  Chase  v.  Peck,  21  N.  Y.  581  ;  Williams  v. 
Roberts,  5  Ohio,  35  ;  Brown  v.  Vanlier,  7  Humph.  239  ;  McAlpine  v.  Burnett,  23 
Tex.  649. 

2  Chilton  V.  Braiden's  Adm'x,  2  Black,  458  ;  Haskell  v.  Scott,  56  Ind.  564  ; 
Pylant  v.  Reeves,  53  Ala.  132 ;  Andms  v.  Coleman,  82  111.  26. 

8  Wilson  V.  Davisson,  2  Rob.  (Va.)  384  ;  Haley  v.  Bennett,  5  Port.  (Ala.)  452  ; 
Kelly  V.  Payne,  18  Ala.  371. 

*  Trotter  v.  Erwin,  27  Miss.  772. 
,6  Thomas  v.  Farmers'  Bank,  32  Md.  57. 

«  Russell  V.  Watt,  41  Miss.  602. 

7  Merritt  v.  Wells,  18  Ind.  171  ;  Patton  v.  Stewart,  19  Ind.  233  ;  Cowl  v.  Var- 
num,  37  111.  181  ;  Richards  v.  Learning,  27  111.  431  ;  Grapengether  v.  Fejervary, 
9  Iowa,  163,  174  ;  Baum  v.  Grigsby,  21  Cal.  172,  176  ;  Hall  i-,  Jones,  21  Md.  439; 
Keith  V.  Horner,  32  111.  524. 


EQUITABLE   MORTGAGES.  81 

to  assert  it  has  been  filed,  but  a  mere  equity  or  capacity  of 
acquiring  a  lien  and  to  have  it  satisfied;^  and  Judge  Story 
does  not  regard  it  as  an  equitable  estate  in  the  land  itself, 
though  it  is  often  spoken  of  as  being  such.^ 

§  1030.  Who  affected  by  Vendor's  Lien.  —  This  lien,  as 
already  remarked,  takes  effect  against  the  vendee,  his  heirs 
and  privies  in  estate,  and  against  subsequent  purchasers  who 
have  notice  that  the  purchase-money  remains  unpaid.^  Upon 
the  question,  what  shall  be  sufficient  notice  in  order  to  charge 
a  second  purchaser,  it  has  been  held  that  a  purchaser  is  bound 
to  take  notice  of  all  liens  shown  to  exist  by  his  vendor's  title- 
deed.*  So,  if  the  original  vendor  remain  in  open  possession, 
especially  if  the  purchaser  shall  have  heard  of  an  agreement 
existing  in  relation  to  the  land  between  his  vendor  and  the 
occupant;^  and  generally  any  notice  will  be  sufficient  which 
ought  to  put  the  purchaser,  as  a  reasonable  man,  upon  in- 
quiry.^ As  where  vendor  retained  possession,  his  lien  pre- 
vailed against  the  vendee  of  his  vendee.'^  Thus,  if  the 
purchaser  knows  that  a  part  of  the  purchase-money  is  un- 
paid,* or  it  is  so  recited  in  his  deed,  it  is  notice  to  the  extent 
of  the  sum  so  recited.^  Notice  to  an  agent  or  the  party's 
solicitor  is  notice  to  the  party, ^*^  and  a  mere  volunteer  who 
pays  nothing  for  his  deed  cannot  set  up  want  of  notice  against 
the  claim  of  his  grantor's  vendor. ^^ 

§  1031.     Lien    Paramount    to    Dower.  —  Upon    the    principle 

1  White  &  Tud.  Lead.  Cas.  (Am.  ed.)  241. 

2  Oilman  v.  Brown,  1  Mason,  191. 

8  Pintard  i-.  Goodloe,  Hempstead  (Ark.),  502;  Webb  v.  Robinson,  14  Ga.  216; 
Garson  v.  Green,  1  Johns.  Ch.  308  ;  Wade  y.  Greenwood,  2  Rob.  (Va.)  474  ;  Amory 
V.  Reilly,  9  Ind.  490  ;  Christopher  v.  Christopher.  64  Md.  583. 

*  McRimmon  v.  Martin,  14  Tex.  318;  Tieriian  v.  Thnnnim,  14  B.  Mon.  277  ; 
Honore  v.  Bakewell,  6  B.  Mon.  67  ;  Danghaday  v.  Paine,  6  Jlinn.  443,  452. 

«  Hopkins  v.  Garrard,  7  B.  Mon.  312  ;   Hamilton  v.  Fowlkes,  16  Ark.  340. 

6  Briscoe  v.  Bronangh,  1  Tex.  326;  Frail  v.  Ellis,  22  L.  J.  x.  s.  Ch.  467. 

7  Pell  V.  McElroy,  36  Cal.  268. 

8  Manly  v.  Slason,  21  Vt.  271 ;  Baum  v.  Grigsby,  21  Cal.  176. 

9  Thornton  v.  Knox,  6  B.  Mon.  74  ;  Woodward  i-.  Woodward,  7  B.  lifon.  116  ; 
Kilpatrick  v.  Kilpatrick,  23  Miss.  124;  McAlpine  i;.  Burnett,  23  Tex.  649;  Mel- 
rossr.  Scott,  18  Ind.  250. 

1"  Mounce  v.  Bj-ars,  11  Ga.  180  ;  Frail  v.  Ellis,  22  L.  J.  x.  s.  Ch.  467. 
11  Burlingan:e  v.  Robbins,  21  Barb.  327 ;  Upshaw  i;.  Hargrove,  6  Sm.  &  M.  286 ; 
Christopher  v.  Christopher,  64  Md.  583. 
VOL.   II.  —  6 


82  EQUITABLE    MORTGAGES. 

above  stated,  the  lien  of  a  vendor  takes  precedence  of  the 
claim  for  dower  of  the  widow  of  a  purchaser,  i 

§  1032.  As  affecting  Creditors.  —  But  upon  the  question, 
how  far  it  shall  prevail  against  creditors  of  the  purchaser, 
there  have  been  various  opinions.  As  a  general  proposition, 
it  does  not  prevail  against  such  creditors, ^  though,  against  a 
voluntary  assignment  made  by  the  purchaser  in  favor  of  his 
creditors,  it  will,  if  the  vendor  file  his  bill  in  equity  to  en- 
force it  before  the  trust  is  executed,  especially  if  the  assign- 
ment be  in  favor  of  antecedent  creditors;^  and  bona  fide 
creditors,  without  notice,  are  considered  as  having  equities 
superior  to  that  of  a  vendor.* 

§  1033.  As  affecting  Purchasers  from  Vendee.  —  A  vendor's 
lien  does  not  prevail  against  a  bona  fide  purchaser  or  mort- 
gagee without  notice,  the  mortgagee  being,  in  equity,  re- 
garded in  the  light  of  a  purchaser.^  If  he  knows  of  the  lien 
when  he  purchases,  he  takes  the  land  subject  to  the  same.  If 
before  knowing  of  it  he  pay  a  part  of  the  consideration  to  his 
vendor,  he  would  be  holden  for  whatever  balance  is  due  at  the 
time  of  such  notice.^  If,  therefore,  one  take  a  mortgage  bona 
fide  from  another  who  is  in  possession  of  the  estate  by  an 
absolute  deed,  he  will  hold  it,  though  the  mortgagor  were  in 
fact  merely  a  trustee  of  the  land  without  any  other  interest 
in  it.  7 

§  1034.    Vendor's  Lien  purely    Equitable.  —  This     lien    of     a 

1  Fisher  v.  Johnson,  5  Ind.  492  ;  Crane  v.  Palmer,  8  Blackf.  120  ;  Williams  v. 
Wood,  1  Humph.  408;  Bisland  v.  Hewett,  11  Sm.  &  M.  164  ;  Nazareth,  etc.  v. 
Lowe,  1  B.  Mon.  257  ;  Ellicott  v.  Welch,  2  Bland,  242  ;  Warner  v.  Van  Alstyne, 

3  Paige,  513  ;  Wilson  v.  Davisson,  2  Bob.  (Va.)  384  ;  Patton  v.  Stewart,  19  Ind. 
233. 

2  Bayley  v.  Greenleaf,  7  Wheat.  46  ;  Aldridge  v.  Dunn,  7  Blackf.  249  ;  Taylor 
V.  Baldwin,  10  Barb.  626  ;  Webb  v.  Robinson,  14  Ga.  216  ;  Gann  v.  Chester, 
5  Yerg.  205  ;  Roberts  v.  Rose,  2  Humph.  145. 

3  Brown  v.  Vanlier,  7  Humph.  239  ;  Shirley  v.  Cong.  Sug.  Ref.,  2  Edw.  Ch. 
505  ;  Repp  v.  Repp,  12  Gill  &  J.  341. 

*  See  language  of  Marshall,  C.  J.,  Bayley  v.  Greenleaf,  7  Wheat.  46. 

5  Bayley  v.  Greenleaf,  swpra  ;  Clark  u.Hunt,  3  J.  J.  Marsh.'  553  ;  Duval  v.  Bibb, 

4  Hen.  &  M.  113  ;  Wood  v.  Bk.  of  Ky.,  5  Mon.  194  ;  Cole  v.  Scott,  2  Wash.  141  ; 
Kauffelt  V.  Bower,  7  S.  &  R.  64  ;  Putnam  v.  Dobbins,  38  111.  394,  400  ;  McLamie 
V.  Thomas,  39  111.  291  ;  Blight  v.  Banks,  6  Mon.  192,  198. 

6  Parker  v.  Foy,  43  Miss.  260. 

^  Newton  v.  McLean',  41  Barb.  285. 


EQUITABLE   MORTGAGES.  83 

vendor  for  bis  purchase-money  is  purely  a  matter  of  equity  and 
does  not  prevail  at  law.^  And  even  in  equity  it  prevails  on 
the  ground  that  the  vendor  is  remediless  in  a  court  of  law,^ 
thous^h  it  is  not  always  necessary  that  the  vendor  should  resort 
to  proceedings  at  law  before  resorting  to  his  bill  in  equity  for 
relief.^  But  in  asserting  this  lien,  the  vendor  cannot  throw 
upon  any  one  part  of  the  estate  more  than  a  pro  rata  burden. 
As  where  the  vendee  sells  to  several  different  parties  who  are 
cognizant  of  the  lien,  they  are  ratably  chargeable.  So  if  he 
sell  several  parcels  to  different  purchasers  cognizant  of  the 
lien,  and  then  sells  the  remainder  to  a  third  party,  a  release  of 
the  lien  to  the  latter  by  the  vendor,  with  the  knowledge  of  such 
prior  sales,  releases  these  prior  vendees  a  ratable  proportion  of 
his  lien  upon  their  lots.  So  if  the  vendee  sell  a  portion  of  the 
land  purchased  by  him  to  one  who  knows  of  the  lien,  and 
receives  pay  for  the  same,  the  original  vendor  must  exhaust  the 
remaining  part  of  the  estate  left  in  his  vendee's  hands  before 
he  can  resort  to  the  parcel  he  had  thus  sold.^  A  similar 
principle  w'as  applied  in  case  of  a  judgment  lien,  where  the 
judgment  debtor  conveyed  a  part  of  his  estate  to  a  third  party.^ 
§  1035.  Waiving  the  Lien.  —  But  this  lien  will  be  defeated  if 
the  vendor  do  any  act  manifesting  an  intention  not  to  rely  upon 
the  land  for  security.^  What  act  is  to  be  deemed  to  work  a 
•waiver  of  a  vendor's  lien,  it  may  not  be  easy  to  define.  But  it 
has  been  held  that  the  taking  the  vendee's  note  or  bond  for  the 
purchase-money  is  not  such  an  act,^  nor  his  check  which  is  not 

1  Coote,  Mortg.  218  ;  Cator  v.  Pembroke,  1  Bro.  C.  C.  302,  n.  ;  Kauffelt  v. 
Bower,  7  S.  &  R.  64 ;  Porter  v.  Dubuque,  20  Iowa,  440 ;  Boynton  v.  ChamplLn, 
42  111.  57-64. 

2  Pratt  V.  Vanwyck,  6  Gill  &  J.  495  ;  Eyler  v.  Crabbs,  2  Md.  137  ;  Bottorf  v. 
Conner,  1  Blackf.  287;  Roper  v.  McCook,  7  Ala.  318. 

3  Richardson  v.  Baker,  5  J.  J.  Marsh,  323 ;  Green  v.  Fowler,  11  Gill  &  J.  103  ; 
High  V.  Batte,  10  Yerg.  186  ;  Payne  v.  Harrell,  40  Miss.  498. 

4  McLaurie  v.  Thomas,  39  111.  291  ;  Blight  v.  Banks,  6  T.  B.  Mon.  192,  198. 

5  Lowry  v.  McKinney,  68  Penn.  St.  294. 

6  Walker,  Am.  Law,  315 ;  Blackburn  v.  Gregson,  1  Bro.  C.  C.  424,  n.  ;  2  Crabb, 
Real  Prop.  853  ;  Coote,  Mortg.  219  ;  Selby  v.  Stanle)%  4  Minn.  65  ;  Daugliaday  v. 
Paine,  6  Minn.  443. 

T  Evans  v.  Goodlet,  1  Blackf.  246  ;  Taylor  v.  Hunter,  5  Humph.  569  ;  Cox  v. 
Fenwick,  3  Bibb,  183;  Garson  v.  Green,  1  Johns.  Ch.  308;  White  v.  Williams, 
1  Paige,  502  ;  Clark  v.  Hunt,  3  J.  J.  Marsh.  553  ;  Thornton  v.  Knox,  6  B.  Mon. 
74  ;  Aldridge  v.  Dunn,  7  Blackf.  249  ;  Ross  v.  Whitson,  6  Yerg.  50 ;  Tompkins 


84  EQUITABLE   MORTGAGES. 

presented  or  paid,^  nor  a  renewal  of  the  vendee's  note.^  It  can 
only  be  waived  by  taking  collateral  security,  or  by  an  express 
agreement  to  that  effect.^  But  the  acceptance  of  a  distinct  and 
separate  security  for  the  purchase-money  is  a  waiver,  as  for 
instance  a  mortgage  of  other  property,*  or  a  bond  or  note  with 
a  surety,^  or  indorser,^  or  a  deposit  of  stock  ; '  or  where  the 
vendor  took  notes  for  the  purchase-money,  and  sold  tliese,  and 
the  purchaser  took  new  notes  from  the  maker.^  And  the  taking 
of  the  note  of  a  third  party  for  the  purchase-money  is  a  waiver 
of  the  lien,  although  it  be  the  note  of  the  husband  where  the 
wife  is  the  purchaser,^  provided  in  these  cases  the  presumption 
of  a  waiver  is  not  rebutted  by  satisfactory  evidence  that  it  was 
intended  that  the  vendor  should  retain  his  lien.^''  But  while  the 
insufficiency  or  even  the  invalidity  of  the  new  security  will  not 
as  a  rule  prevent  a  waiver,^^  yet  fraud  will,  because  the  intent  to 

V.  Mitchell,  2  Rand.  428  ;  Pinchain  v.  Collard,  13  Tex.  333  ;  Truebody  v.  Jacobson, 

2  Cal.  269;  Walker  v.  Sedgwick,  8  Cal.  398,  493.  Xor  is  suing  it,  Nairn  v. 
Prowsc,  6  Ves.  752,  n. ;   Boynton  v.  Champlin,  42  111.  57. 

1  Honore  v.  Bakewell,  6  B.  Mon.  67.  And  this  extends  to  any  instrument 
whicli  involves  merely  the  personal  liability  of  the  vendee.  Mims  v.  Macon  & 
W.  R.  R.,  3  Ga.  333. 

^  Minis  V.  Lockett,  23  Ga.   237.     See  also  upon  this  point  Winter  i'.  Anson, 

3  Russ.  488  ;  Teed  v.  Carruthers,  2  Yo.  &  C.  Ch.  31 ;  Ex  parte  Loaring,  2  Rose, 
79  ;  Hughes  v.  Kearne}',  1  Sch.  &  L.  132,  136. 

3  Dubois  V.  Hull,  43  Barb.  26 ;  McLaurie  v.  Thomas,  39  111.  291. 

*  Richardson  v.  Ridgely,  8  Gill  &  J.  87  ;  White  v.  Dougherty,  1  Mart.  &  Y. 
309  ;  Young  y.  Wood,  11  B.  Mon.  123  ;  3  Sugd.  Vend.  191,  204  ;  Manly  v.  Slason, 
21  Vt.  271  ;  unless  vendee  is  guilty  of  fi'aud,  Tobey  v.  McAllister,  9  Wis.  463  ; 
Mattix  V.  Weand,  19  Ind.  151  ;  Hummer  v.  Schott,  21  Md.  307 ;  Hadley  v. 
Pickett,  25  Ind.  450,  though  covering  only  a  part  of  the  premises  sold. 

5  Boon  V.  Murphy,  6  Blackf.  272  ;  Williams  v.  Roberts,  5  Ohio,  35  ;  Mayham 
V.  Coombs,  14  Ohio,  428 ;  Wilson  v.  Graham,  5  Muuf.  297  ;  Blight  v.  Banks, 
6  Mon.  192  ;  McGonigal  v.  Plumraer,  30  Md.  422  ;  Fonda  v.  Jones,  42  Miss.  792, 
unless  express  agreement  to  the  contrary. 

6  Foster  v.  Trustees,  3  Ala.  302  ;  Burke  v.  Gray,  6  How.  (Miss.)  527;  Marshall 
V.  Christmas,  3  Humph.  616;  Conover  v.  Warren,  1  Gilm.  498  ;  Gilman  v.  Brown, 
1  Mason,  191  ;  s.  c.  4  Wheat.  255  ;  Burger  v.  Potter,  32  111.  66. 

7  Lagow  V.  Badollet,  1  Blackf.  416. 

8  Phelps  V.  Conover,  25  111.  309. 

9  Cowl  V.  Varnum,  37  111.  181;  Richards  v.  Learning,  27  111.  431;  Boynton  v. 
Champlin,  42  111.  57  ;  Andrus  v.  Coleman,  82  111.  26. 

10  Campbell  v.  Baldwin,  2  Humph.  248  ;  Mims  v.  Macon  &  W.  R.  R.,  3  Ga. 
333  ;  Baum  v.  Grigsby,  21  Cal.  172. 

"  Hunt  V.  Waterman,  12  Cal.  301  ;  Mayham  v.  Coombs,  14  Ohio,  428  ;  Andrus 
V.  Coleman,  82  111.  26  ;  Willard  v.  Reas,  26  Wis.  540  ;  Partridge  v.  Logan,  3  Mo. 


EQUITABLE   MORTGAGES.  85 

waive  cannot  then  be  implied.^  At  all  events,  taking  such  secu- 
rity is  prima  facie  evidence  of  a  waiver,  and  the  onua  is  on  the 
vendor  to  prove  by  the  most  cogent  and  irresistible  circum- 
stances that  it  ought  not  to  have  that  effect;''^  although  the 
Chancellor,  in  one  case,  was  inclined  to  hold  that  the  burden 
of  proof  was  upon  the  purchaser  to  show  that  the  vendor  agreed 
to  rest  on  the  collateral  security.^  But  if  the  vendor  has  merely 
given  a  bond  for  a  deed,  the  lien  he  has  for  the  purchase-money 
is  treated  as  a  moi-tgage,  and  no  change  in  the  form  of  the  debt 
will  discharge  the  lien,  short  of  the  payment  of  it.*  So  a  vend- 
or's lien  may  be  shown  to  be  waived  by  proof  of  his  intention 
not  to  rely  upon  it  as  security.^ 

§  1036.  Vendor's  Lien,  in  whose  Favor  arises.  —  This  lien 
does  not  arise  in  favor  of  a  third  party  who  pays  the  purchase- 
money  to  the  vendor  for  the  purchaser,  and  takes  his  note  for 
the  same.^  But  this  is  held  otherwise  in  those  States  which 
permit  the  lien  to  pass  with  the  sale  of  the  note.'^  And  in  Ohio, 
where  a  husband  and  wife  were  sued  by  a  vendor  for  the  pur- 
chase of  an  estate  conveyed  to  the  wife,  and  he  paid  the  judg- 
ment, it  was  held  that  he  thereby  became  subrogated  to  the 
vendor's  lien  till  repaid  the  sura  he  had  been  obliged  to  pay.*' 
Nor  is  the  rule  uniform  how  far  the  assignee  of  the  vendor's 
claim  for  the  purchase-money  may  avail  himself  of  his  lien  by 
way  of  security  for  the  same. 

§  1037.  Assignability  of  Vendor's  Lien.  —  As  a  general  propo- 
sition, if  a  debt  is  secured  by  an  express  lien  upon  property  by 
agreement  of  the  parties,  an  assignment  of  the  debt  secured  by 
such  lien  will  give  the  assignee  the  benefit  of  such  lien.^     In 

App.  509  ;  but  see  Haugh  v.  Blythe,  20  Irnl.  24  ;  Champliii  v.  McLeod,  53  Miss. 
484;  Duke  v.  Balme,  16  Minn.  306,  contra. 

1  Tobey  v.  McAllister,  9  Wis.  463  ;  Crippen  v.  Heermauce,  9  Paige,  211. 

2  Gilman  v.  Brown,  1  Mason,  191,  217,  219. 
8  Hughes  V.  Kearney,  1  Scb.  &  L.  135. 

*  Graham  v.  McCampbell,  Meigs,  52  ;  Anthony  v.  Smith,  9  Humph.  508. 

6  Clark  V.  Hunt,  3  J.  J.  Marsh.  553 ;  Phillips  v.  Saundersoii,  Sm.  &  M.  Ch.  462  ; 
Eedford  v.  Gibson,  12  Leigh,  332;  Mackreth  v.  Synimoiis,  15  Ves.  329,  342; 
Austen  v.  Halsey,  6  Ves.  475,  483. 

8  Stansell  v.  Roberts,  13  Ohio,  148;  Skaggs  v.  Nelson,  25  Miss.  88;  Crane  v. 
Caldwell,  14  HI.  468  ;  Notte's  Appeal,  45  Penn.  St.  361. 

^  Peet  V.  Beers,  4  Ind.  46  ;  Lusk  v.  Hopper,  3  Bush,  179. 

8  Westerman  v.  Westerman,  25  Ohio  St.  500. 

9  Graham  v.  McCampbell,  Meigs  (Teun.),  52  ;  Tanner  v.  Hicks,  4  S.  ii  M.  294  ; 


86  EQUITABLE   MORTGAGES. 

analogy  with  this,  it  has  been  held  in  Kentucky,  Indiana,  and 
Alabama,  that  the  assignment  of  a  vendor's  claim  for  purchase- 
money  carries  with  it  the  vendor's  lien,  whether  express  or  im- 
plied.^ But  the  prevailing  opinion  in  other  States  seems  to  be 
that  such  a  lien  is  a  personal  one,  and  does  not  pass  by  assign- 
ment of  the  claim.2  If,  however,  the  note  is  not  sold,  but  is 
assigned  as  collateral,  and  perhaps  was  taken  in  payment  of 
the  vendor's  debt,  the  transferee  is  entitled  to  enforce  the  lien.'^ 
If  the  note  comes  back  to  the  vendor,  his  lien  revives,* 

§  1038.  Vendor's  Lien  denied  in  Certain  Cases,  —  The  implied 
lien  of  a  vendor  for  the  performance  of  the  consideration  does 
not  arise  where  the  amount  of  the  charge  on  the  land  cannot 
be  ascertained  accurately,  as  where  the  consideration  is  to  sup- 
port the  grantor  for  life.^ 

§  1039.  Vendee's  Lien  for  Title.  —  Corresponding  to  the  lien 
which  a  vendor  has  for  his  purchase-money  is  the  lien  which 
equity  gives  the  vendee  on  the  land  to  the  amount  advanced 
towards  the  purchase-money,  until  the  vendor  shall  have  made 
a  title  to  the  same,^     This  is  but  little  more  than  carrying  out 

Xorvell  V.  Johnson,  5  Humph.  489  ;  Eskridge  v.  McClure,  2  Yerg,  84  ;  Crow  v. 
Vance,  4  Iowa,  434  ;  McCliutic  v.  Wise,  25  Gratt.  448. 

1  Edwards  v.  Bohannon,  2  Dana,  98  ;  Honore  v.  Bakewell,  6  B.  Mon.  67  ;  La- 
gow  V.  Badollet,  1  Blackf.  416;  Brunifield  v.  Palmer,  7  Blackf.  227;  Roper  v.  Mc- 
Cook,  7  Ala,  318  ;  White  v.  Stover,  10  Ala.  441  ;  Griggsby  v.  Hair,  25  Ala.  327  ; 
Eisher  v.  Johnson,  5  Ind.  492. 

2  Brush  V.  Kinsley,  14  Ohio,  20  ;  Horton  v.  Horner,  id.  437 ;  Gann  v.  Chester, 
5  Yerg.  205  ;  Sheratz  v.  Nicodemus,  7  Yerg.  9  ;  Green  v.  Crockett,  2  Dev.  &  B.  Eq. 
390  ;  Webb  v.  Robinson,  14  Ga.  216  ;  White  v.  Williams,  1  Paige,  502  ;  Dicken- 
son I'.  Chase,  1  Morris  (Iowa),  492  ;  Briggs  v.  Hill,  6  How,  (Miss. )  362  ;  Moreton 
V.  Harrison,  1  Bland,  491  ;  Hallock  v.  Smith,  3  Barb.  267  ;  Shall  v.  Biscoe,  18  Ark. 
142,  where  the  point  is  fully  examined  ;  Walker  v.  Williams,  30  Miss.  165  ;  Strat- 
ton  17.  Gold,  40  Miss.  778  ;  Baum  v.  Grigsby,  21  Cal.  172  ;  Wellborn  v.  Williams, 
9  Ga.  86  ;  Green  v.  Demoss,  10  Humph.  371  ;  McLaurie  v.  Thomas,  39  111.  291  ; 
Ross  V.  Heintzen,  36  Cal.  313  ;  Moshier  v.  Jleek,  80  111.  79  ;  Elder  v.  Jones,  85  111. 
384. 

3  Crawley  v.  Riggs,  24  Ark.  563 ;  Carlton  v.  Buckner,  28  Ark.  66  ;  Hallock  v. 
Smith,  3  Barb.  267. 

*  Gotten  V.  McGehee,  54  Miss.  510  ;  Bernays  v.  Feild,  29  Ark.  218  ;  Kelly  v. 
Payne,  18  Ala,  371;  Turner  v.  Horner,  29  Ark.  440;  Lindsay  w.  Bates,  42  Miss. 
397  ;  White  v.  Williams,  1  Paige,  502. 

°  Corbin  v.  Brown,  44  IST,  H.  102  ;  Hiscock  v.  Norton,  42  Mich.  320  ;  s.  c.  30 
N.  W.  Rep.  868  ;  McKillip  v.  McKillip,  8  Barb.  552 ;  Meigs  v.  Dimock,  6  Conn. 
458  ;  Peters  v.  Tunell,  43  Minn.  473  ;  s.  c.  45  N.  W.  Rep.  867  ;  s.  c.  19  Am.  St. 
Kep.  252.     Contra,  Chase  v.  Peck,  21  X.  Y.  581. 

6  Coote,  Mortg,  218  ;  Burgess  v.  Wheate,  1  W,  Bl.  123,  L50,     The  doctrine  is 


EQUITABLE  MORTGAGES.  87 

the  old  idea  of  a  use  raised  in  favor  of  a  vendee  who  has  paid 
the  purchase-money  of  an  estate.  And  where  the  contract  is 
executory,  as  fast  as  the  purchase-money  is  paid  in,  it  is  a  part 
performance  of  such  contract,  and  to  that  extent  the  payment 
of  the  money,  in  equity,  transfers  to  the  purchaser  the  owner- 
ship of  a  corresponding  portion  of  the  estate.  Accordingly,  if 
the  vendor,  after  the  contract  of  sale  made,  mortgage  the  estate, 
the  mortgagee  takes  only  the  interest  of  the  vendor  under  such 
contract.  He  may  notify  the  vendee  to  pay  him  the  instalment 
falling  due.  If  he  do  not,  and  vendee  pays  it  to  the  vendor,  the 
effect  is  to  divest  so  much  of  the  mortgagee's  equitable  interest 
in  the  land.^ 

§  1040.  Vendee's  Lien,  how  enforced.  — The  mode  of  enforc- 
ing such  liens  is  by  a  bill  in  equity,  to  have  a  satisfaction  of 
the  debt  made  ;  and  to  that  end  the  court  may  order  enough 
of  the  land  to  be  sold  to  satisfy  the  lien.^  But  it  can  be  en- 
forced only  in  a  suit  or  proceeding  brought  for  the  purpose.  It 
cannot  be  reached  by  a  collateral  proceeding.^  But  the  holder 
of  such  lien  may  be  pursuing  his  remedy  to  collect  his  debt, 
and  to  enforce  his  lien  at  the  same  time,  in  which  respect  his 
rights  are  the  same  as  of  all  mortgagees.^  But  it  was  held, 
that,  where  a  vendor  enforced  his  lien  for  a  part  of  the  pur- 
chase-money which  was  due,  it  exhausted  his  lien  even  as  to 
the  part  not  due.^  And  if  the  lien  is  once  waived,  equity  will 
not  revive  it.^ 

doubted  by  Siigden,  1  Sugd.  Vend.  478,  but  approved  in  Mackreth  v.  Symmons, 
15  Ves.  352,  and  in  Story,  Eq.  Jur.  §  ]217  and  note.  See  also  Payne  v.  Atterbury, 
Harringt.  Ch.  414  ;  ^Etna  Ins.  Co.  v.  Tyler,  16  Wend.  385  ;  Lowell  v.  Middlesex 
Ins.  Co.,  8  Cush.  127 ;  Shirley  v.  Shirley,  7  Blackf.  452  ;  Chase  v.  Peck,  21  N.  Y, 
581 ;  Hope  v.  Stone,  10  Minn.  141  ;  Taft  v.  Kessel,  16  Wis.  273,  279 ;  Wickman  v. 
Robinson,  14  Wis.  493. 

1  Rose  V.  Watson,  10  H.  L.  Gas.  672,  678.  See  Knox  v.  Gye,  L.  R.  5  E.  &  I. 
App.  675,  as  to  how  far  vendor,  after  sale,  becomes  a  trustee  of  the  vendee. 

2  Wilson  V.  Davisson,  2  Rob.  (Va.)  384  ;  Mnllikin  v.  MuUikin,  1  Bhmd,  538  ; 
Eskridge  v.  M'Clure,  2  Yerg.  84 ;  Clark  v.  Bell,  2  B,  Mon.  1 ;  Williams  v.  Young, 
17  Cal.  403. 

8  Converse  v.  Blumrick,  14  Mich.  109. 

*  Payne  v.  Harrell,  40  Miss.  498 ;  Clark  ;).  Hunt,  3  J.  J.  lilarsb.  553 ;  Jones  v. 
Conde,  6  Johns.  Ch.  77;  Ely  v.  Ely,  6  Gray,  439;  post,  §  1172. 
6  Codwise  v.  Taylor,  4  Sneed,  346. 
6  Burger  v.  Potter,  32  111.  66. 


88  MORTGAGES. 


CHAPTER   XLY. 

MORTGAGES — OF   THE    MORTGAGEE'S   INTEREST. 

§  1041.  Mortgagee's  estate  at  common  law. 

1042.  Mortgagee's  interest  in  equity. 

1043.  The  debt  the  principal  thing. 

1044.  Common  law  theory  of  mortgages. 

1045.  Lien  theory  of  mortgages. 

1046.  Combination  of  both  theories. 

1047.  Restriction  of  mortgagee's  right  to  possession. 

1048.  Rights  of  mortgagor  and  mortgagee  as  to  assignees. 

1049.  Of  notice  to  assignees. 

1050.  Mortgagee's  interest,  how  assigned. 

1051.  Mortgagee's  interest,  how  assigned,  continued. 

1052.  Assignment  by  deed. 

1053.  When  mortgage  and  debt  inseparable. 

1054.  Mortgagee  as  trustee  for  mortgagor. 

1055.  Mortgagee  as  trustee  for  assignee  of  debt. 

1056.  Assignment  by  transfer  of  mortgage  debt. 

1057.  Several  debts  secureil  by  same  mortgage. 

1058.  Assignment  as  affected  by  law  of  place. 

1059.  Equities  of  assignees. 

1060.  Legal  remedy  of  equitable  assignee. 

1061.  What  will  divest  mortgagee's  seisin. 

1062.  Enforcing  mortgages  on  different  parcels. 

1063.  Payment  working  equitable  assignment. 

1064.  Eff'ect  of  mortgagee's  purchase  of  equity  of  redemption. 

1065.  Of  mortgagee's  remedy  for  waste. 

1066.  Of  mortgagee's  remedy  for  waste,  continued. 

1067.  Injunction  to  stay  waste. 

1068.  Of  leases  and  emblements. 

1069.  Of  recovery  of  rent  by  mortgagee. 

1070.  Recovery  of  rent  by  mortgagee,  continued. 

1071.  Mortgagee's  interest  not  subject  to  dower  or  debts. 

1072.  Of  devises  aff"t'cting  mortgages. 

1073.  Mortgages  go  to  personal  rejiresentatives. 

1074.  Of  mortgages  for  separate  debts. 

1075.  Of  separate  mortgages  for  one  debt. 

1076.  Order  of  priority. 

1077.  Effect  of  defective  registration  on  notice. 

1078.  Doctrine  of  Us  pcvdcvs. 

1079.  Of  recording  assignments. 

1080.  Of  judgment  and  mortgage  liens. 

1081.  Doctrine  of  tacking. 


OF   THE   mortgagee's   INTEREST,  89 

§  1082.  Extension  of  lien  in  JIassacliusetts. 

1083.  Mortgages  for  future  advances. 

1084.  Mortgages  for  future  advances,  continued. 

1085.  Mortgage  as  affecting  after  acquired  property. 

1086.  Same  subject  —  Railway  rolling-stock. 

1087.  Waiving  foreclosure. 

§1041.  Mortgagee's  Estate  at  Common  Law.  —  By  the  Com- 
mon law,  a  mortgagee  in  fee  of  land  is  considered  as  absolutely 
entitled  to  the  estate,  which  he  may  devise  or  transmit  by  de- 
scent to  his  heirs.^  He  takes  it  subject  to  its  being  defeated 
by  the  grantor's  doing  some  act,  such  as  the  payment  of  money, 
in  a  prescribed  time  and  manner,  and  often  subject  by  agree- 
ment to  the  right  of  the  grantor  to  occupy  till  he  fails  to  per- 
form the  condition  of  his  deed.  But  if  the  condition  fail  to  be 
fulfilled  punctually,  all  right  of  the  grantor  to  the  estate  is 
thereafter  gone,  and  the  mortgagee  becomes  the  absolute  and 
unconditional  owner  of  the  entire  estate.^  Indeed,  the  idea  of 
an  estate  in  the  rjght  iii__eqjLiity-to-X£d££in  mortgaged  lands 
being  in  the  mortgagor  is  of  comparatively  recent  origin.  Lord 
Hardwicke,  about  1736,  first  declared  it  to  be  such  until  barred 
by  foreclosure. \  And  although  at  first  this  was  purely  a  notion 
of  equity,  it  has,  as  will  be  shown  hereafter,  found  its  way  into 
the  common  law  to  a  greater  or  less  extent,  according  as  it 
was  more  or  less  favored  by  the  courts  of  the  several  States.^ 

§  1042.  In  Equity,  the  Interest  of  a  Mortgagee  is  essentially 
different  from  that  at  common  law.  It  has  two  aspects,  one 
before  and  the  other  after  the  condition  of  the  mortgage  has 
been  broken,  and  sometimes  a  tliird,  where  this  breach  has 
been  followed  by  actual  possession  taken  of  the  premises  by 
the  mortgagee.  Besides,  recourse  is  often  necessary  to  be  had 
to  the  forms  of  law,  in  order  to  enforce  a  mortgagee's  rights. 
Here  a  different  set  of  terms  is  made  use  of  in  relation  to  his 
interest  from  those  used  in  considering  it  in  equity.  In  one 
connection  it  may  be  spoken  of  as  a  personal  interest,  in  the 

1  Van  Duyne  v.  Thayre,  14  Wend.  233  ;  Deemarest  v.  Wyncoop,  3  Johns.  Ch. 
129,  145  ;  2  Crabb,  Real  Prop.  858  ;  Wms.  Real  Prop.  349;  1  Bytli.  Conv.  by  Jar- 
man,  638  ;  Fisk  v.  Fisk,  Prec.  Chan.  11  ;  Co.  Lit.  205  a,  n.  96.  But  see,  as  to 
mortgages  being  devisable  before  condition  broken,  2  Crabb,  Real  Prop.  882. 

2  Wms.  Real  Prop.  351,  352,  354  ;  2  Crabb,  Real  Prop.  856,  857. 

8  Casborne  v.  Searfe,  1  Atk.  603  ;  Story,  Eq.  Jur.  §  1015;  Parsons  v.  Welles, 
17  Mass.  419 ;  Co.  Lit.  205  a,  Butler's  note,  96. 


90  MORTGAGES. 

other  as  a  legal  estate.  This  may  aid  in  partially  reconciling 
the  discrepancy  in  the  manner  in  which  courts  have  treated 
mortgages,  though  it  may  not  fully  explain  it.  Thus  a  mort- 
gagee can  only  release  his  interest  in  the  land  by  a  deed. 
But  equity  will  enforce  it  if  made  by  writing  not  under  seal.^ 
And  if  a  writ  of  entry  be  brought  against  one  in  possession 
of  land,  who  holds  a  mortgage  upon  the  same,  he  may  plead 
that  he  is  seised  in  fee,  although  he  may  never  have  made 
formal  entry  to  foreclose  the  same.^  Hence  a  trust  concern- 
ing a  mortgage  is  not  a  trust  in  land  and  need  not  be  as- 
signed in  writing.^ 

§  1043.  The  Debt  the  Principal  Thing.  — As  a  general  propo- 
sition, equity  regards  a  mortgage,  especially  before  the  condition 
is  broken,  as  creating  an  interest  in  the  mortgaged  premises  of 
a  personal  nature,  like  that  which  the  mortgagee  has  in  the 
debt  itself.  It  treats  the  debt  as  the  principal  thing,  and 
the  land  as  a  mere  incident  to  it.  Whatever  it  does  with 
the  land  is  auxiliary  to  enforcing  payment  of  the  debt.^ 

§  1044.  Common  Law  Theory  of  Mortgages.  — In  considering 
this  complicated  system,  and  grouping  the  rules  which  have 
been  recognized  or  adopted  in  the  various  States  as  to  the 
nature  and  character  of  a  mortgagee's  interest  in  lands  held 
by  him  in  mortgage,  it  will  be  found  that  the  chief  differ- 
ence is  between  the  States  where  a  mortgage  is  regarded  as 
a  conveyance  passing  a  legal  freehold  from  the  mortgagor 
to  the  mortgagee,  and  the  States  where  it  only  gives  a  lien 
or  confers  an  equitable  title  enforceable  by  statutory  or  equi- 
table remedies.   In  the  former  class  are  Massachusetts,  Maine, 

1  Headley  v.  Gonndry,  41  Barb.  279. 

2  Hoxie  V.  Finney,  11  Gray,  511. 

3  Thacher  v.  Churchill,  118  Mass.  108. 

*  Martin  v.  Mowlin,  2  Burr.  978  ;  Matthews  v.  Wallwyn,  4  Yes.  118  ;  Co.  Lit. 
205,  Butler's  note,  96  ;  Wms.  Real  Prop.  349  ;  id.  354  ;  Brown  v.  Gibbs,  Free. 
Chan.  97  ;  Miami  Ex.  Co.  v.  U.  S.  Bk.,  Wright  (Ohio),  249  ;  Hughes  v.  Ed- 
wards, 9  "Wheat.  500  ;  Rnnyan  v.  ]\Iersereau,  11  Johns.  534  ;  Myers  v.  White, 
1  Rawle,  353  ;  Ellison  v.  Daniels,  11  N.  H.  274  ;  Eagland  v.  Justices,  10  Ga.  65  ; 
Dougherty  v.  McColgan,  6  Gill  &  J.  275  ;  Dudley  v.  Cadwel],  19  Conn.  218;  Cal- 
kins  V.  Calkins,  3  Barb.  305  ;  Waring  v.  Smythe,  2  Barb.  Ch.  119  ;  Kinna  v.  Smith, 
3  N.  J.  Eq.  14;  Jackson  v.  Willard,  4  Johns.  41  ;  Whitney  v.  French,  25  Vt.  663  ; 
Hannah  v.  Carrigan,  18  Ark.  85  ;  McMillan  v.  Richards,  9  Cal.  365  ;  Anderson  v. 
Baumgartner,  27  Mo.  80  ;  Green  v.  Hart,  1  Johns.  530 ;  Eaton  v.  Whiting,  3  Pick. 
484. 


OF  THE   mortgagee's  INTEREST.  91 

and  other  States,  where  it  is  held  that,  unless  restricted  by 
the  terms  of  the  deed,  the  mortgagee  may  enter  at  once  upon 
the  land  ;  nor  will  he  be  liable  in  trespass  to  the  mortgagor  for 
making  such  entry  or  exercising  any  ordinary  acts  of  owner- 
ship upon  the  premises  ;i  but  may  have  trespass  against  the 
mortgagor  even  before  condition  broken,  as  for  resisting  his 
entry,  or  cutting  timber  and  the  like.^  In  Delaware,  Missouri, 
and  Mississippi,  and  in  Vermont  by  statute,  while  the  mortga- 
gee has  no  right  of  possession  before  breach,  yet  when  a  breach 
occurs  the  title  vests  in  him  at  law,  enabling  him  to  maintain 
ejectment  or  other  legal  remedies  for  possession.^  Tiie  same 
doctrine  prevails  in  New  Jersey  ^  and  Ohio  ;  ^  the  mortgagee 

1  Newall  V.  Wright,  3  Mass.  138;  Erskiiie  v.  Townsend,  2  Mass.  498  ;  Groton 
V.  Boxborough,  6  Mass.  50;  Reading  of  Trowbridge,  J.,  8  Mass.  551;  Fay  v. 
Brewer,  3  Pick.  203  ;  Maynard  v.  Hunt,  5  Pick.  240  ;  Bradley  v.  Fuller,  23  Pick.  1 ; 
Winslow  V.  Mercli.  Ins.  Co.,  4  Met.  306  ;  Miner  v.  Stevens,  1  Cusb.  482  ;  Page  v. 
Robinson,  10  Gush.  99;  Wales  v.  Mellen,  1  Gray,  512  ;  Johnson  v.  Phillips,  13 
Gray,  198;  Welch  v.  Priest,  8  Allen,  165  ;  Walker  v.  Thayer,  113  Mass.  36,  39; 
Simpson  v.  Dix,  131  Mass.  179  ;  Searle  v.  Sawyer,  127  Mass.  491  ;  Blaney  v. 
Bearce,  2  Me.  132;  Tuttle  v.  Lane,  17  Me.  437  ;  Smith  v.  Kelley,  27  Me.  237  ; 
Covell  V.  Dolloff,  31  Me.  104  ;  Fosters.  Perkins,  42  Me.  168.  And  where  the  mort- 
gagee is  restricted  by  the  deed  from  entering  before  breach,  he  may  enter  then, 
though  the  mortgage  also  provides  for  a  sale  in  that  event.  First  Nat.  F.  I,  Uo. 
V.  Salisbury,  130  Mass.  303. 

'■^  Smith  V.  Johns,  3  Gray,  517;  Page  v.  Robinson,  10  Cush.  99  ;  Northampton 
Mills  V.  Ames,  8  Met.  1  ;  Searle  v.  Sawyer,  127  Mass.  491 ;  Tripe  v.  Marcy,  39 
N.  H.  439  ;  Furbush  v.  Goodwin,  29  N.  H.  321  ;  Gray  v.  Gillespie,  59  N.  H.'469  ; 
Bellows  V.  B.  C,  &  M.  R.  R.,  id.  491  ;  Chellis  v.  Stearns,  22  N.  H.  312.  See  Gr. 
Falls  Co.  V.  Worster,  15  N.  H.  412  ;  Barker  v.  Bell,  37  Ala.  354,  358  ;  Welsh  v. 
Phillips,  54  Ala.  309  ;  Snedecor  v.  Freeman,  71  Ala.  140  ;  but  see  Strang  v.  Moog, 
72  Ala.  460. 

8  Hall  I'.  Tunnell,  1  Houst.  320  ;  Cooch  v.  Gerry,  3  Harr.  280  ;  Wakop  v. 
McKinney,  10  Mo.  229  ;  Kennet  v.  Plummer,  28  Mo.  142  ;  Sutton  v.  Mason, 
38  Mo.  120  ;  Woods  v.  Hilderbrand,  46  Mo.  284  ;  Johnson  v.  Houston,  47  Mo. 
227;  Reddick  v.  Gressman,  49  Mo.  389;  Jones  v.  Mack,  53  Mo.  147  ;  Watson 
V.  Dickens,  12  Sm.  &  M.  608  ;  Mclntyre  v.  Whitfield,  13  Sm.  &  M.  88  ;  Trustees 
V.  Dickson,  1  Freem.  Ch.  474  ;  Harmon  v.  Short,  8  Sm.  &  U.  433  ;  Hill  v.  Rob- 
ertson, 24  Miss.  368  ;  Wilkinson  v.  Flower,  37  Miss.  579  ;  Buckley  v.  Daley,  45 
Miss.  338,  345;  Buck  v.  Payne,  52  Miss.  271;  Tucker  v.  Keeler,  4  Vt.  161; 
Moray  v.  Maguire,  id.  327  ;  Hooper  v.  Wilson,  12  Vt.  695  ;  Wright  v.  Lake, 
30  Vt.  206  ;  per  Barrett,  Ch.,  Cheever  v.  Rutl.  &  B.  R.  R.,  39  Vt.  653. 

*  Sanderson  v.  Price,  21  N.  J.  646  ;  Shields  v.  Lozear,  34  N.  J.  496  ;  Kircher 
V.  Schalk,  39  N.  J.  335,  337.  But  it  is  also  held  in  this  State  that  payment  of 
the  debt  after  the  law  day  extinguishes  the  mortgage  at  law.     Ibid. 

6  Ely  V.  Maguire,  2  Ohio,  223  ;  Phelps  v.  Butler,  id.  224  ;  Hart  v.  Blacking- 
ton,  Wright,  386  ;  Rands  v.  Kendall,  15  Ohio,  671,  676,  677 ;   Doe  v.  Pendleton, 


92  MORTGAGES. 

being  entitled  in  these  States,  for  the  purposes  of  remedy  and 
security,  after  condition  broken,  to  resort  to  the  same  measures 
in  law  as  the  holder  of  a  legal  estate ;  ^  or,  as  it  is  stated  in  one 
case,  "  the  right  of  the  mortgagee  to  have  his  interest  treated 
as  real  estate  extends  to  and  ceases  at  the  point  where  it  ceases 
to  be  necessary  to  enable  him  to  protect  or  avail  himself  of  his 
just  rights  intended  to  be  secured  to  him  by  the  mortgage."  ^ 
While,  as  between  himself  and  the  mortgagor,  he  is  treated 
as  the  owner  of  the  legal  estate,  as  to  strangers,  the  legal 
estate  is  treated  as  remaining  in  the  mortgagor  ;  and  hence 
the  outstanding  title  in  the  mortgagee  cannot  be  set  up  by 
a  stranger  in  ejectment  by  the  mortgagor.^  Another  incident 
of  this  class  of  mortgage  interests  is  the  right  which  the 
mortgagee  has,  upon  failure  of  the  mortgagor  to  redeem,  to 
become  himself  the  absolute  owner  of  the  premises  through 
some  process  of  foreclosure  by  which  the  equity  of  redemp- 
tion is  extinguished.  Upon  recovery  in  such  an  action  he 
will  take  the  estate  with  all  the  crops  growing  upon  it.* 
Nor  will  equity  interfere  to  prevent  him  from  pursuing  his 
legal  remedy  to  obtain  possession  of  the  premises,  or  from 
assuming  possession  at  any  time,  if  not  restrained  by  his 
deed  or  some  statute ;  ^  and  he  may  pursue  all  his  remedies 
at  the  same  time  in  equity  or  at  law.^  The  seisin  acquired 
by  the  mortgagee   under    the    mortgage-deed  is    sufficient  to 

id.  735  ;  Frische  v.  Kramer,  16  Ohio,  125  ;  Carter  v.  Goodin,  3  Ohio  St.  75  ; 
Allen  V.  Everly,  24  Ohio  St.  97  ;  Yearly  v.  Long,  40  Ohio  St.  27.  And  the  lan- 
guage in  Miami  Ex.  Co.  v.  U.  S.  Bk.,  Wright,  249,  describing  the  mortgage  inter- 
est as  a  mere  lien,  must  be  limited  accordingly. 

^  Cases  supra. 

2  Ellison  V.  Daniels,  U  N.  H.  274;  Clinton  v.  Westbrook,  38  Conn.  9,  14; 
Buck  V.  Payne,  52  Miss.  271.  See  also,  for  similar  definitions,  Ewer  v.  Hobbs, 
6  Met.  1 ;  Munson  v.  Munson,  30  Conn.  425,  437  ;  Kelly's  Case,  32  Md.  421. 

8  Hall  V.  Lance,  25  111.  281  ;  Savage  v.  Dooley,  28  Conn.  411  ;  Burr  v.  Spencer, 
26  Conn.  159. 

*  McCall  V.  Lenox,  9  S.  &  R.  302  ;  Thompson  v.  Vinton,  121  Mass.  139  ;  Porter 
V.  Hubbard,  134  Mass.  233,  237. 

°  Den  V.  Wright,  7  N.  J.  175  ;  Newbold  v.  Xewbold,  1  Del.  Ch.  310;  Wilhelm 
V.  Lee,  2  Md.  Ch.  322. 

«  Ely  V.  Ely,  6  Gray,  439  ;  Vanzant  v.  Allnian,  23  HI.  30  ;  Carroll  v.  Ballance, 
26  HI.  9  ;  Karnes  v.  Lloyd,  52  HI.  113  ;  Erickson  v.  Rafferty,  79  111.  209  ;  New- 
bold  V.  Newbold,  1  Del.  Ch.  310;  Brown  r.  Stewart,  1  Md.  Ch.  87;  Wilhelm  v. 
Lee,  2  Md.  Ch.  322 ;  Lord  v.  Crowell,  75  Me.  399 ;  Whitehead  v.  L.  &  B.  Co.,  72 
Ala.  39;  Torrey  v.  Cook,  116  Mass.  135  ;  post,  §  1173. 


OP   THE   mortgagee's   INTEREST.  93 

carry  with  it,  accordinj^  to  the  right  he  has  in  tlie  estate, 
the  benefit  of  his  covenant  of  warranty  made  with  his  mort- 
gagor.i  And  although  payment  or  performance  on  the  law 
day,  in  accordance  with  the  terms  of  the  mortgage,  defeats 
the  mortgagee's  estate  at  lavv,^  tender  of  payment  to,  or 
even  acceptance  of  it  by,  the  mortgagee  after  the  law  day 
will  not.^ 

§  1045.  Lien  Theory  of  Mortgages.  —  [In  those  States  which 
have  adopted  the  "  lien  theory  "  the  mortgagee  acquires  no 
estate  whatever  in  the  land  either  at  law  or  in  equity.  He 
acquires  nothing  but  a  lien,  —  a  mere  right,  in  the  event  of  a 
default,  to  have  the  specific  property  mortgaged  sold  and  the 
proceeds  applied  in  satisfaction  of  the  debt.  The  legal  estate 
remaining  in  the  mortgagor,  the  mortgagee  is  not  entitled  to 
the  possession  of  the  land  and  cannot  eject  the  mortgagor. 
The  mortgagor  can  be  divested  of  his  estate  and  right  of  pos- 
session, only  by  sale  under  foreclosure;  and  if,  upon  foreclos- 
ure, the  mortgagee  become  the  owner  of  the  premises,  he 
becomes  so  by  buying  at  the  sale,  and  not,  as  in  strict  fore- 
closure under  the  common  law  theory,  by  extinguishing  the 
mortgagor's  equitable  right  to  redeem,  rendering  his  own  pre- 

1  McGoodwin  v.  Stephenson,  11  B.  Mon.  21  ;  Devin  v.  Hcndershott,  32  Iowa, 
192  ;  and  see  Felch  v.  Taylor,  13  Pick.  133  ;  White  v.  Whitney,  8  Mete.  81. 

•^  Erskine  v.  Townsend,  2  Mass,  493,  495  ;  Fay  v.  Cheney,  14  Pick.  399,  401  ; 
Breckenridge  v.  Ormsby,  1  J.  J.  Marsh.  257 ;  Armitage  v.  Wicklifle,  12  B.  Monr. 
497  ;  Blanchard  v.  Benton,  4  Bibb,  45  ;  Francis  v.  Porter,  7  Ind.  213  ;  Powell  v. 
Williams,  14  Ala.  476  ;  Barker  v.  Bell,  37  Ala.  354;  Hemphill  v.  Ross,  66  N.  C. 
477 ;  Ellis  v.  Hussey,  id.  501 ;  Berryhill  v.  Kirchner,  96  Penn.  St.  489 ;  Munsou 
V.  Mnnson,  30  Conn.  425,  437 ;  Furguson  v.  Coward,  2  Heisk.  572  ;  post,  §  1106. 

3  Fanlkner  v.  Brockenbrough,  4  Rand.  245;  Phelps  v.  Sage,  2  Day,  151  ;  Gris- 
wold  V.  Mather,  5  Conn.  440  ;  Doton  v.  Russell,  17  Conn.  154 ;  Smith  v.  Vincent, 
15  Conn.  1 ;  Dudley  v.  Cadwell,  19  Conn.  227  ;  Robinson  v.  Cross,  22  Conn.  171  ; 
Townsend  Sav.  Bk.  v.  Todd,  47  Conn.  190  ;  Howe  v.  Lewis,  14  Pick.  329  ;  Fay  v. 
Cheney,  id.  399,  401;  Howard  v.  Howard,  3  Met.  548.  But  in  Illinois  and 
Kentucky  payment  by  the  mortgagor  after  breach  and  entry  entitles  him  to  main- 
tain ejectment  against  the  mortgagee.  Holt  v.  Rees,  44  111.  30  ;  Breckenridge  v. 
Ormsby,  1  J.  .1.  Marsh.  257.  And  in  New  York,  even  a  mere  tender  has  this  effect. 
Kortright  v.  Cady,  21  N.  Y.  343.  In  Maine,  since  R.  S.  c.  70,  §  28,  payment 
after  the  law  day  discharges.  Wilson  v.  E.  &  N.  A.  R.  R.,  67  Me.  358,  361  ; 
Lord  V.  Crowell,  75  Me.  399.  And  in  Massachusetts  it  is  now  held  that  the  mort- 
gagee's bare  legal  title  after  payment  is  no  bar  to  mortgagor's  taking  possession, 
and  gives  no  right  to  the  mortgagee  to  enter.  Baker  v.  Gavitt,  128  Mass.  93;  and 
see  'post,  §  1106. 


94  MORTGAGES. 

vious  legal  estate  indefeasible.  Default  works  no  change  in 
the  mortgagor's  rights  or  estate.  He  has  his  "  law  day  "  until 
foreclosure.  A  mortgagor's  estate  in  the  land,  therefore,  both 
before  and  after  default,  is  misnamed  an  "equity  of  redemp- 
tion." The  mortgagee  having  no  estate  in  the  land,  there  is 
nothing  for  the  mortgagor  to  redeem.  His  right  is  to  pay 
the  debt.  ^  It  is  immaterial  that  the  mortgage  is  in  form  an 
absolute  deed.^ 

§  1046.  Combination  of  both  Theories.  —  Certain  States,  as 
Delaware  and  Missouri,  have  combined  the  common  law  and 
equitable  theories  by  giving  to  the  mortgage  the  force  of  a 
mere  lien,  as  described  in  the  preceding  section,  leaving  the 
legal  estate  with  the  right  of  possession  in  the  mortgagor 
until  default;  giving  them  then  to  the  mortgagee,^  but  only 
for  the  purpose  of  enforcing  his  security ;  payment,  even  after 
default,  revesting  the  title  in  the  mortgagor.^     Moreover,  in 

1  Syracuse  v.  Bk.  Tallman,  31  Barb.  201  ;  Stoddard  v.  Hart,  23  N.  Y.  556  ; 
Kortright  v.  Cady,  21  N.  Y.  343  ;  Nagle  v.  Macy,  9  Cal.  426 ;  McMillan  v.  Pdcli- 
ards,  id.  365  ;  Button  v.  Warscliauer,  21  Cal.  609 ;  Gibbs  v.  Holmes,  10  Rich. 
Eq.  489 ;  Elfe  v.  Cole,  26  Ga.  197  ;  Crown  v.  Snell,  6  Fla.  741  ;  Keasoner  v. 
Edmundson,  5  Ind.  393  ;  Francis  v.  Porter,  7  Ind.  213 ;  Grable  v.  McCulloh,  27 
Ind.  472;  Fletcher  v.  Holmes,  32  Ind.  497,  518 ;  Croft  v.  Bunster,  9  Wis.  503  ;  Wood 
V.  Trask,  7  Wis.  566  ;  Brinkman  v.  Jones,  44  Wis.  498  ;  Mason  v.  Beach,  55 
Wis.  607  ;  Heyward  v.  Judd,  4  Miun.  483,  492  ;  Pace  v.  Chadderdon,  id.  502 ; 
Adams  v.  Corriston,  7  Minn.  462;  Perkins  v.  Sterne,  23  Tex.  561;  Chick  v. 
Willets,  2  Kan.  384,  391  ;  Clark  v.  Reyburn,  1  Kan.  281 ;  Kyger  v.  Riley, 
2  Neb.  28;  Webb  v.  Hoselton,  4  Neb.  808;  Witherill  v.  Wiberg,  4  Sawyer, 
232 ;  Douglas  v.  Cline,  12  Bush,  608 ;  Woolley  v.  Holt,  14  Bush,  788  ; 
Taliaferro  v.  Gay,  78  Ky.  496  ;  Rader  v.  Ervin,  1  Mont.  632  ;  State  v.  Laval, 
4  McCord,  336  ;  Thayer  v.  Cramer,  1  McCord,  Ch.  395  ;  Ragland  v.  Justices,  10  Ga. 
65  ;  Durand  v.  Isaacks,  4  McCord,  54  ;  Mitchell  v.  Bogan,  11  Rich.  686  ;  Pasco  v. 
Gamble,  15  Fla.  562  ;  Bryan  v.  Butts,  27  Barb,  503  ;  Smith  v.  Gardner,  42  Barb. 
356  ;  Packer  v.  Roch.  R.  R.,  17  N.  Y.  283  ;  Stuart  v.  Hutchins,  13  Wend.  485  ; 
Murray  v.  Walker,  31  N.  Y.  399 ;  Trim  en  v.  Marsh,  54  N.  Y.  599  ;  Caruthers  v. 
Humphrey,  12  Mich.  270  ;  Mann  v.  Falcon,  25  Tex.  271  ;  Edrington  v.  Newland, 
57  Tex.  627  ;  Pratt  v.  Godwin,  61  Tex.  331  ;  White  v.  Rittenmyer,  30  Iowa,  268 ; 
Burton  v.  Hintrager,  18  Iowa,  348  ;  Carpenter  v.  Allen,  16  La.  An.  435  ;  Belloc  v. 
Rogers,  9  Cal.  123 ;  Carpentier  v.  Brenham,  40  Cal.  221  ;  Jordan  v.  Sayre,  29  Fla. 
100  ;  s.  c.  10  So.  Rep,  823;  AVaterson  v.  Devoe,  18  Kan.  223. 

2  Locke  V.  Moulton,  96  Cal.  21  ;  s.  c.  30  Pac.  Rep.  957  ;  Yankton  B.  &  L.  Asso, 
V.  Cowling,  10  S.  Dak.  535  ;  s.  c.  74  N.  W.  Rep.  436. 

3  Hall  V.  Tunnell,  1  Houst.  (Del.)  320  ;  Newbold  v.  Newbold,  1  Del.  Ch.  310; 
Cooch  V.  Gerry,  3  Harr.  (Del.)  280  ;  Walcop  v.  McKinney,  10  ilo.  229  ;  Sutton 
V.  Mason,  38  Mo.  120  ;  Reddick  v.  Gressman,  49  Mo.  389. 

*  Pease  v.  Pilot  Knob  Iron  Co.,  49  Mo.  124, 


OP   THE   mortgagee's   INTEREST.  95 

certain  States,  under  the  lien  theory,  while  the  mortgagee, 
whether  before  or  after  default,  has  no  right,  qua  mortgagee, 
to  oust  the  mortgagor  from  possession,  yet  if,  after  default, 
he,  without  objection  on  the  part  of  the  mortgagor,  obtain 
possession  of  the  land,  he  may  now,  qua  mortgagee,  defend 
his  possession  against  the  mortgagor  as  long  as  the  debt 
remains  unpaid.  ^  But  to  do  this  he  must  not  have  obtained 
possession  by  force  or  fraud. ^ 

§  1047.  Restriction  of  Mortgagee's  Right  to  Possession.  — 
Even  in  those  States  where  the  mortgagee's  right  to  posses- 
sion has  not  been  wholly  abolished  or  has  not  been  restricted 
until  condition  broken,]  it  is  always  competent  for  the  mort- 
gagee to  effect  this  by  a  clause  in  the  mortgage  deed.^  Nor 
is  it  necessary  that  this  clause  should  in  direct  terms  nega- 
tive the  mortgagee's  right  of  entry.  It  will  be  sufficient  if 
the  nature  of  the  condition  requires  the  mortgagor  to  hold 
possession  in  order  to  perform  it ;  or  if  by  the  terms  of  the 
condition  such  possession  in  the  mortgagor  is  necessarily 
implied.*  But  such  a  restriction  will  not  be  inferred  from 
the  mortgagor's  having  been  permitted  to  occupy  the  prem- 
ises, nor  from  such  being  the  usage  of  the  country.^  Nor 
would  it  be  inferred  from  a  covenant  being  inserted  in  the 
instrument  giving  the  mortgagee  a  right  to  enter  upon  default 
made.^  But  a  parol  agreement  that  the  mortgagor  should 
continue   to   occupy   would   not  be  sufficient,   as   it  seems, ^ 

1  Bolton  V.  Brewster,  32  Barb.  389  ;  Sahler  v.  Signer,  44  Barb.  606 ;  J^Iickles  v. 
Townsend,  18  N.  Y.  575;  Pace  v.  Chaddcrdon ,  4  Minn.  499;  Tillett  v.  Eaton, 
6  Wis.  30  ;  Tallman  v.  Ely,  6  Wis.  244 ;  Schreiber  v.  Gary,  48  Wis.  208  ;  Russi-ll 
V.  Ely,  2  Beach,  575  ;  Durand  v.  Isaacks,  4  McCord,  54;  Mitchell  j;.  Began,  11 
Kich.  686 ;  Mason  v.  Beach,  55  Wis.  607. 

2  Howell  V.  Leavitt,  95  N.  Y.  617. 

8  Coote,  Mortg.  343;  Flagg  r.  Flagg,  11  Pick.  475 ;  Brown  v.  Cram,  1  N.  H. 
169  ;  Hartshorn  v.  Hubbard,  2  N.  H.  453. 

*  Wales  V.  Mellen,  1  Gray,  512  ;  Lamb  v.  Foss,  21  Me.  240;  Brown  v.  Leach, 
85  Me.  39  ;  Norton  v.  Webb,  id.  218 ;  Dearborn  v.  Dearborn,  9  N.  H.  117  ;  Flan- 
ders  V.  Lamphear,  id.  201 ;  Rhoades  v.  Parker,  10  N.  H.  83 ;  Flagg  v.  Flagg,  11 
Pick.  475  ;  Clay  v.  Wren,  34  Me.  187. 

5  Stowell  V.  Pike,  2  Me.  387  ;  Brown  v.  Cram,  1  N.  H.  169  ;  Hartshorn  u.  Hub- 
bard,  2  N.  H.  453.     But  see  contra,  Jackson  v.  Hopkins,  18  Johns.  487. 

6  Rogers  v.  Grazebrook,  8  Q.  B.  895. 
'  Colman  v.  Packard,  16  Mass.  39. 


96  MORTGAGES. 

tliougli  it  has  been  held   that  an  agreement  to   that  effect 
might  be  if  inserted  in  the  note.^ 

§  1048.  Rights  of  Mortgagor  and  Mortgagee  go  to  Assignees.  — 
These  rights  and  liabilities  of  mortgagor  and  mortgagee,  in 
respect  to  taking  and  holding  possession,  extend  to  their 
respective  assignees. ^  Thus  a  second  mortgage  is  as  to  the 
second  mortgagee  but  an  assignment  of  the  mortgagor's  inter- 
est; though,  as  against  the  mortgagor,  it  is  such  a  transfer 
of  the  interest  of  the  latter,  that,  if  the  first  mortgage  is  dis- 
charged, the  second  comes  into  its  place  as  a  first  mortgage. 
As  assignee  of  the  mortgagor,  the  second  mortgagee  may 
insist  upon  all  the  rights  of  the  mortgagor  against  the  first 
mortgagee,  such  as  that  of  calling  him  to  account,  redeeming 
from  him,  and  the  like.^  But  the  converse  of  this  proposi- 
tion is  not  true,  to  the  extent  that  a  second  mortgagee,  or  a 
purchaser  from  a  mortgagor,  assumes  the  liability  of  the 
mortgagor,  except  so  far  as  it  is  charged  upon  the  estate 
specifically.  He  may  or  may  not  redeem  the  estate  from  the 
first  mortgage  at  his  election,  or  do  any  act  to  prevent  a  fore- 
closure of  the  same.^  Such  assignee  of  the  mortgagor  does 
not  become  personally  liable  for  the  mortgage  debt,  in  the 
absence  of  express  agreement  upon  the  subject,^  even  though 
the  deed  under  which  he  claims  conveys  the  estate  "  subject 
to  an  outstanding  mortgage."^  But  where  the  mortgagor's 
deed  recited  that  a  part  of  the  consideration  was  that  the 
grantee  was  to  pay  the  mortgage  debt,  it  was  held  to  make 
the  purchaser  personally  liable  for  the  debt  to  the  moi'tgagor.'' 

1  Clay  V.  Wren,  34  Me.  187. 

2  Jackson  v.  Minkler,  10  Johns.  480  ;  Jackson  v.  Bowen,  7  Cow.  13  ;  Belding 
V.  Manly,  21  Vt.  550  ;  Erskine  v.  Townsend,  2  Mass.  493  ;  Gould  v.  Newman, 
6  Mass.  239  ;  Norfhainpton  Mills  v.  Ames,  8  Met.  1  ;  Jackson  v.  Fuller,  4  Johns. 
215;  Jackson  v.  Hopkins,  18  Johns.  487;  Jackson  v.  Stackhouse,  1  Cow.  122; 
Henshaw  i-.  AVells,  9  Humph.  568;  Eastman  v.  Batchelder,  36  N.  H.  141. 

3  Goodman  v.  White,  26  Conn.  317. 

4  Mclntier  v.  Shaw,  6  Allen,  83,  85. 

5  Johnson  v.  Monell,  13  Iowa,  300  ;  Aufricht  v.  Northrop,  20  Iowa,  61  ;  Corn- 
stock  ?'.  Hitt,  37  111.  542. 

s  Pike  V.  Goodnow,  12  Allen,  472  ;  Strong  v.  Converse,  8  Allen,  557  ;  Fiske 
V.  Tolman,  124  Mass.  254  ;  Lawrence  v.  Towle,  59  N.  H.  28;  Moore's  App.,  88  Penn. 
St.  450 ;  Miles  v.  Miles,  6  Oreg.  266. 

7  Furnas  v.  Durgin,  119  Ma.ss.  500  ;  post,  §§  1138,  2408.  In  Mason  v.  Bur- 
nard,  86  Mo.  384 ;    Fithian  v.  Monks,  43  Mo.   502,  under  a  statute   holding  the 


OF   THE   mortgagee's   INTEREST.  97 

In  determining  the  order  of  precedence  of  rights  as  assignees, 
where  there  are  several  successive  mortgages,  and  anything 
remains  after  satisfying  the  first  mortgage,  reference  would 
ordinarily  be  had  to  the  order  of  their  record.  But  it  is  com- 
petent to  show  that,  where  two  mortgages  were  made,  it  was 
agreed  by  one  of  the  mortgagees  that  the  mortgage  of  the 
other  should  take  precedence ;  so  the  third  mortgagee  may 
show  that  the  second  deed  never  was  delivered,  or  was  deliv- 
ered upon  a  condition  which  had  never  been  performed.^  If, 
after  such  second  mortgage,  the  first  buys  in  the  mortgagor's 
equity,  he  does  not  thereby  affect  the  second  mortgagee's 
right  to  redeem  from  the  first  mortgage  ;2  [the  reason  for 
this  being,  as  will  hereafter  be  explained  more  fully,  that 
the  purchaser  of  the  mortgagor's  interest,  whether  it  be  con- 
sidered an  equity  of  redemption  or  the  legal  estate,  is,  as  to 
subsequent  incumbrances,  allowed  to  keep  his  mortgage  alive 
in  order,  to  the  extent  of  his  mortgage,  to  protect  himself 
against  such  subsequent  incumbrances  by  forcing  redemption.] 
§  1049.  Of  Notice  to  Assignees.  —  It  may  be  assumed  as  a 
general  proposition,  that  whatever  may  be  the  term  applied  to 
a  mortgagee's  interest,  whether  lien  or  estate,  it  requires  a 
deed  to  create  it;  and  the  ordinary  rules  of  registration 
apply  to  this  as  to  other  deeds  of  conveyance.^  No  one  but 
a  second  assignee  of  a  mortgage,  or  some  one  claiming  under 
such  mortgage,  can  take  advantage  of  a  want  of  record  by  the 
first  assignee;  because  as  to  all  taking  title  subsequent  to  the 
mortgage  its  existence,  undischarged  on  the  record,  is  notice 
by  which  they  are  bound  in  favor  of  the  unrecorded  assignee. 

"mortgagor"  liable,  it  was  held  that  tlie  mortgagor's  grantee  by  a  deed  poll,  re- 
citing that  the  grantee  was  to  pay  the  mortgage,  was  not  liable  thereby  to  the 
mortgagee. 

1  Freeman  v.  Schroeder,  43  Barb.  618;  Wilsey  v.  Dennis,  44  Barb.  354. 

2  Thompson  v.  Chandler,  7  Me.  377. 

8  Schmidt  v.  Ployt,  1  Edw.  Ch.  652;  Johnson  v.  Stagg,  2  Johns.  510,  524; 
Vanderkemp  v.  Shelton,  11  Paige,  28  ;  Clark  v.  Jenkins,  5  Pick.  280  ;  Rigney  v. 
Lovejoy,  13  N.  H.  247  ;  Phillips  v.  LewistonBk.,  18  Penn.  St.  394  ;  Krwin  v. 
Shue}%  8  Ohio  St.  509  ;  Heard  v.  Evans,  1  Freeman,  Ch.  (Miss. )  79,  84.  In  the 
latter  case,  the  Chancellor  says  :  "The  legal  title  was  in  H.  (the  mortgagee),  sub- 
ject to  E.'s  equity  of  redemption.  They  (the  purchasers)  were  bound  to  have  in- 
quired whether  that  legal  title  had  been  divested  out  of  H.  and  vested  in  E.  This 
could  only  be  done  in  one  of  two  ways,  —  either  by  reconveyance  of  H.  or  an 
absolute  payment  or  satisfaction  of  the  mortgage  debt." 
VOL.    II.  —7 


98  MORTGAGES. 

But  a  second  assignee,  without  notice,  takes  precedence  of  the 
prior  unrecorded  assignment.  ^  If  the  assignment  of  amort- 
gage  is  recorded,  a  subsequent  release  by  the  mortgagee  to 
one  claiming  under  the  mortgagor,  or  dealing  with  the  mort- 
gage, would  be  of  no  validity,  as  against  such  assignee. ^ 

§  1050.  Mortgagee's  Interest,  how  assigned.  —  If  a  mort- 
gagee in  possession  convey  the  estate  by  quitclaim  deed,  it 
passes  all  the  title  and  interest  he  has  in  the  premises.^  But 
if  the  mortgagee  be  out  of  possession,  and  the  mortgagor,  or 
one  claiming  under  him,  is  in  possession  of  the  premises,  an 
assignment  by  the  mortgagee  will  be  good,  although  he  may 
have  been  ousted  by  one  holding  a  prior  mortgage  of  the 
premises.*  Accordingly,  the  interests  of  a  mortgagee  may 
be  transferred  or  conveyed  by  .the  same  form  of  deeds  by 
which  any  owner  of  a  legal  estate  can  convey  it;  and  the 
effect  of  record  or  want  of  it  is  the  same  as  in  other  convey- 
ances.^ Not  only  is  a  common  law  mortgage  a  conveyance  in 
fee  of  real  estate,  but  an  assignment  of  a  mortgage  is  a  con- 
veyance of  real  estate  to  the  assignee.  And  if  a  mortgagee 
mortgage  the  land  of  which  he  holds  a  mortgage,  it  will  con- 
vey his  interest  in  it.^  So  where  a  mortgagee  assigned  his 
bond  and  mortgage  by  a  deed  which  was  recorded,  and  the 
assignee  then  assigned  to  A,  who  did  not  cause  his  assign- 
ment to  be  recorded,  the  former  then  assigned  it  to  B  to 
secure  a  loan  for  one  hundred  dollars,  and  a  debt  already  due 
of  seventy-five  dollars,  and  B  put  his  assignment  upon  record. 
In  a  question  of  precedence  between  A  and  B,  the  court  held 

1  Purdy  V.  Huntington,  42  N.  Y.  335  ;  Campbell  v.  Yedder,  3  Keyes,  174  ; 
Van  Keuren  v.  Corkins,  66  N.  Y.  77  ;  Crane  v.  Turner,  67  N.  Y.  437.  What 
circumstances  will  make  the  duty  of  inquiry  equal  to  notice,  see  Morris  v.  Bacon, 
123  Mass.  58  ;  Strong  v.  Jackson,  id.  60. 

2  Belden  v.  ileeker,  47  N.  Y.  307  ;  Campbell  v.  Yedder,  su2)ra.  In  Burhans 
V.  Hutcheson,  25  Kan.  625,  such  a  release  to  the  mortgagor  was  held  invalid 
against  the  indorsee  of  a  negotiable  mortgage  note,  though  the  assignment  was 
not  recorded. 

3  Conner  v.  Whitmore,  52  Me.  185  ;  Townsend  Sav.  Bk.  v.  Todd,  47  Conn. 
190,  214  ;  Welsh  v.  Phillips,  54  Ala.  309. 

*  Lincoln  v.  Emerson,  108  Mass.  87. 

5  Welsh  V.  Priest,  8  Allen,  165 ;  Smith  v.  Keohane,  6  Bradw.  585. 

6  Cutter  V.  Davenport,  1  Pick.  81  ;  Hutchins  v.  State  Bk.,  12  Met.  421,  424  ; 
Murdock  v.  Chapman,  9  Gray,  156;  Douglas  u.  Durin,  51  Me.  121.  See  Givan 
V.  Doe,  7  Blackf.  212. 


OP   THE   mortgagee's   mTFJlEST-  P9 

that,  to  the  extent  that  B  was  a  purchaser  for  a  valuable  con- 
sideration paid,  he  should,  by  his  prior  registration,  acquire 
a  right  prior  to  that  of  A.  But  that,  as  to  his  old  debt,  his 
equity  was  no  greater  than  that  of  A,  and  it  should  be  post- 
poned to  that  of  A  J  So  where  A,  to  secure  a  loan  of  money, 
made  a  mortgage  which  the  mortgagee  failed  to  record,  and 
then  made  a  second  mortgage  to  B  to  secure  an  existing  debt, 
who  had  no  notice  of  the  first,  it  was  held  that  the  prior  mort- 
gage had  precedence,  as  the  second  was  made  without  any  new 
consideration, 2  In  New  York,  where  the  mortgagee  sold  the 
estate  for  the  purpose  of  foreclosing  the  mortgage,  but  failed 
to  give  proper  notice  to  the  mortgagor  so  as  to  operate  as  a 
foreclosure,  it  was  held  to  constitute  an  assignment  of  the 
mortgage  to  the  purchaser.  And  in  Massachusetts,  a  war- 
ranty deed  of  the  premises  by  the  mortgagee  in  possession  is 
held  to  be  an  assignment  of  the  mortgage.^  But  if  the  mort- 
gagee do  not  assign  the  debt  with  his  interest  as  mortgagee, 
it  makes  such  assignee  trustee  only  for  him  who  holds  the 
debt.*  The  assignment  of  a  mortgage  implies  no  guaranty  as 
to  the  amount  due  thereon.^ 

§  1051.  Mortgagee's  Interest,  how  assigned,  continued.  — 
Treating  the  interest  of  a  mortgagee  as  an  interest  in  lands 
and  tenements  even  of  the  most  inconsiderable  account,  it 
cannot  as  a  common  law  right  be  assigned  without  a  deed  or 
note  in  writing  signed  by  the  mortgagee  or  his  agent,  or  by 
act  and  operation  of  law  in  accordance  with  the  third  section 
of  the  statute  of  frauds.^  In  conformity  with  the  notion  that 
the  legal  interest  of  a  mortgagee  is  in  the  nature  of  an  estate 
in  lands,  the  courts  of  Massachusetts  and  Maine  hold,  that  it 
can  only  be  assigned  by  a  deed  which  may  be  made  upon  the 
original  mortgage  deed,  or  by  a  separate  instrument,  without 
delivering  over  the  original  deed.^     In  Maine,  therefore,  the 

1  Pickett  V.  Barron,  29  Barb.  505. 

2  Gary  v.  White,  52  N.  Y.  138, 

8  Robinson  v.  Ryan,  25  X,  Y.  320,  325  ;  Jackson  y.  Bowen,  7  Cowen,  13  ; 
Ruggles  V.  Barton,  13  Gray,  506, 

*  Sanger  V.  Bancroft,  12  Gray,  365,  367.     See  Symes  v.  Hill,  Quincy,  318. 

6  Bree  v.  Holbeck,  Doug.  655  ;  Hammond  v.  Lewis,  1  How.  1-i. 

6  Warden  v.  Adams,  15  Mass.  233,  236. 

'  Parsons  v.  Welles,  17  Mass.  419  ;  Warden  v.  Adams,  15  Mass.  233  ;  Gould 


lOG  MORTGAGES. 

assignment  of  a  mortgage  debt  passes  no  interest  at  law  in 
the  land,  and  the  mortgagee  may  sue  for  and  recover  posses- 
sion of  the  same.i  Therefore,  an  assignment  of  a  mortgage 
debt  and  mortgage  by  an  instrument  in  writing,  not  under 
seal,  does  not  pass  the  mortgagee's  interest.  It  must  be  by 
deed  acknowledged  and  recorded. ^  And  even  in  Pennsyl- 
vania, where  some  of  the  cases  regard  a  mortgagee's  inter- 
est so  little  like  a  legal  estate  in  lands,  the  court  use  this 
language  in  a  modern  case:  "A  mortgage  is  in  form  a  con- 
veyance of  the  land,  and  an  assignment  of  it  is  another  con- 
veyance of  the  same  land.  The  assignment  of  a  mortgage  is 
therefore  within  the  language  of  the  recording  act,"  etc.^ 
Although  an  assignment  of  a  mortgage  debt  in  Pennsylvania 
is  said  to  transfer  the  right  to  the  mortgage  itself,  a  devise  of 
all  a  testator's  personal  property  passes  his  mortgages,  and 
whatever  will  carry  money  secured  by  a  mortgage  will  carry 
the  mortgagee's  interest  in  the  mortgaged  premises.*  Ac- 
cordingly, it  has  been  held,  that  if  a  mortgagor  make  demand 
of  and  tender  to  the  mortgagee  for  purposes  of  redemption, 
and  bring  his  bill  accordingly,  it  will  be  effectual,  though  the 
mortgage  may  have  been  assigned,  if  the  mortgagor  has  not 
been  notified  of  such  assignment,  or  it  has  not  been  recorded.^ 
But  in  California  it  is  doubted  if  the  assignment  of  a  mort- 
is. Newman,  6  Mass.  239  ;  Vose  v.  Handy,  2  Me.  322  ;  Prescott  v.  Ellingwood, 
23  Me.  345  ;  Lyford  v.  Ross,  33  Me.  197  ;  Dwinel  v.  Perley,  32  Me.  197  ;  Young 
V.  Miller,  6  Gray,  152  ;  Mitchell  v.  Burnham,  44  Me.  286 ;  Ruggles  v.  Barton, 
13  Gray,  506  ;  Welsh  v.  Phillips,  54  Ala.  309. 

1  Stanley  v.  Kempton,  59  Me.  472. 

2  Adams  v.  Parker,  12  Gray,  53. 

3  Philips  M.  Lewiston  Bk.,  18  Penn.  St.  394.  So  in  Indiana,  Givan  v.  Doe, 
7  Blackf.  210 ;  and  New  York,  AVilliams  v.  Birbeck,  1  Hoff.  Ch.  359  ;  Fort  u. 
Burch,  5  Denio,  187.  See  also  Mitchell  v.  Burnham,  44  Me.  302 ;  Hutchins  v. 
State  Bk.,  12  Met.  424;  Svvartz  v.  Leist,  13  Ohio  St.  419  ;  Henderson  v.  Pilgrim, 
22  Tex.  464.  And  in  Ohio  and  Iowa  it  was  held,  that  an  unrecorded  assignment, 
though  an  equitable  one,  is  inoperative  against  third  parties  in  law  and  in  equity. 
Fosdick  V.  Barr,  3  Ohio  St.  471 ;  Bank  v.  Anderson,  14  Iowa,  544  ;  Bowling  v. 
Cook,  39  Iowa,  200.  But  in  New  Hampshire  the  assignment  of  a  mortgage,  even 
though  made  by  deed,  need  not  be  recorded.  Wilson  v,  Kimball,  27  N.  H. 
300. 

4  Moore  v.  Cornell,  68  Penn.  St.  320. 

5  l^Iitchell  V.  Bnrnham,  44  Me.  302 ;  Henderson  v.  Pilgrim,  22  Tex.  464  ; 
Gregory  r.  Savage,  32  Conn.  250. 


OF   THE   mortgagee's   INTERf:ST.  101 

gage  comes  within  the  category  of  "real  estate,"  or  "an  in- 
terest in  real  estate."  ^ 

§  1052.  Assignment  by  Deed.  —  It  has  accordingly  been 
held,  that  a  deed  of  quitclaim  or  mortgage  of  the  premises  in 
usual  form,  by  the  mortgagee  to  a  third  party,  would  operate 
as  an  assignment  of  his  interest  as  mortgagee  ;2  and  a  deed 
with  covenants  of  warranty  would  convey  all  the  grantor's 
right,  and  operate  as  an  equital)le  assignment  of  the  debt 
secured  by  the  mortgage.^  If  the  mortgagee  convey  a  part  of 
the  mortgaged  premises  to  a  purchaser  by  a  separate  deed,  it 
does  not  extinguish  the  mortgage  on  that  part  as  to  the  mort- 
gagor; it  only  transfers  the  interest  of  the  mortgagee  in  that 
part  of  the  estate.^  In  the  States  given  in  the  note  it  is  held 
that  the  legal  interest  in  a  mortgage  deed  can  be  transferred 
or  assigned,  but  not  without  a  sealed  instrument.^ 

1  McCabe  v.  Grey,  20  Cal.  509,  516.  So  in  Kansas,  if  the  note  is  negotiable. 
Burhans  v.  Hutclieson,  25  Kan.  625. 

2  Hunt  V.  Hunt,  14  Pick.  374;  Freeman  v.  M'Gaw,  15  Pick.  82,  in  which 
separate  obligations  to  pay  had  been  given  by  the  mortgagor.  Barker  v.  Parker, 
4  Pick.  505  ;  Warden  v.  Adams,  15  Mass.  233  ;  Cole  v.  Edgerly,  48  Me.  108,  112 ; 
Murdock  v.  Chapman,  9  Gray,  156;  Kilborn  v.  Robbins,  8  Allen,  472;  Givan  v. 
Doe,  7  Blackf.  210  ;  Dorkray  v.  Noble,  8  Me.  278,  where  there  was  not  a  .separate 
obligation.  See  also  Crooker  v.  Jewell,  31  Me.  306  ;  Welch  v.  Priest,  8  Allen, 
165;  Savage  v.  Hall,  12  Gray,  363;  Conner  r.  Whitmore,  52  Me.  185;  South- 
wick  V.  Atlantic  Ins.  Co.,  133  Mass.  457.  The  same  is  held  in  Vermont.  CoUamer 
V.  Langdon,  29  Vt.  32.  Contra,  in  New  Hampshire.  Furbush  v.  Goodwin,  25 
N.  H.  425. 

3  Lawrence  v.  Stratton,  6  Gush.  163  ;  Ruggles  v.  Barton,  13  Gray,  506.  See 
also  Givan  v.  Doe,  7  Blackf.  210  ;  Olmstead  v.  Elder,  2  Sandf.  325.  Contra, 
Wilson  V.  Troup,  2  Cow.  195.  Whether  such  a  deed  of  warranty  will  transfer 
a  mortgage  debt  in  New  Hampshire,  qiuere.  Weeks  v.  Eaton,  15  N.  H.  145  ; 
Hinds  V.  Ballon,  44  N.  H.  619,  621.  The  effect  of  a  conveyance  or  transfer  of  the 
mortgagee's  legal  estate  upon  the  debt  itself  will  be  further  considered  hereafter. 
See  Belding  v.  Manly,  21  Vt.  550. 

*  Wyman  v.  Hooper,  2  Gray,  141 ;  Grover  v.  Thatcher,  4  Gray,  526. 

6  Alabama,  Graham  v.  Newman,  21  Ala.  497  ;  Welsh  v.  Phillips,  54  Ala.  309, 
requires  a  deed.  So  Massachusetts,  Cutter  v.  Davenport,  1  Pick.  81.  Pennsyl- 
vania, Moore  v.  Cornell,  68  Penn.  St.  320.  Ohio,  Swartz  v.  Leist,  13  Ohio  St.  419. 
Minnesota,  Morrison  v.  Mendenhall,  18  Minn.  232 ;  Johnson  v.  Carpenter,  7  Minn. 
176,  184,  where  the  doctrine  that  the  note  carries  the  estate  at  law  is  declared 
"  inherently  vicious,  and  one  which  would  tend  very  much  to  unsettle  titles." 
So  in  Connecticut  the  assignee  of  the  mortgage  only  is  held  to  be  a  trustee  for  the 
creditor  owning  the  debt,  Huntington  v.  Smith,  4  Conn.  235  ;  Quinebaug  Bk. 
V.  French,  17  Conn.  129,  134  ;  unless  by  such  assignment  the  debt  is  impliedly 
assigned,  Bulkeley  v.  Chapman,  9  Conn.  5.     In  New  Jersey,  a  deed  was  formerly 


102  MORTGAGES. 

§  1053.  When  Mortgage  and  Debt  inseparable.  —  In  New 
York  and  other  States  which  have  adopted  the  lien  theory,  it 
is  held,  that  a  conveyance  or  assignment  of  the  mortgaged 
premises,  without  specifically  assigning  the  debt  or  what  is 
equivalent,  would  be  void.  It  would  pass  no  estate,  and  any 
one  holding  under  such  a  deed  would  be  as  to  the  mortgagor 
a  trespasser.  This  is  based  upon  the  idea  that  the  debt  is  the 
principal  thing;  that  it  cannot  be  detached  from  the  interest 
in  the  land ;  and  a  subsequent  assignment  of  the  debt  would 
pass  the  land,  notwithstanding  such  prior  deed.^  The  same 
rule  of  construction  has  been  adopted  as  law  in  the  States 
given  in  the  note;^  though  in  some,  as  in  Missouri,  with  the 

required.  Den  v.  Dimon,  10  N.  J.  156.  But  this  is  now  altered  by  statute. 
Mulford  V.  Peterson,   35  N.  J.  127 

1  Wilson  V.  Troup,  2  Cow.  195  ;  Jackson  v.  Bronson,  19  Johns.  325  ;  Aymar 
V.  Bill,  5  Johns.  Ch.  570  ;  Jackson  v.  Willard,  4  Johns.  41 ;  Merritt  v.  Bartholick, 
36  N.  Y.  44  ;  Purdy  v.  Huntington,  42  N.  Y.  334;  Smith  v.  Moore,  11  N.  H.  55  ; 
Ellison  V.  Daniels,  id.  274  ;  Southerin  v.  Mendum,  5  N.  H.  420  ;  Furbush  v. 
Goodwin,  25  N.  H.  425 ;  Lamprey  i;.  Nudd,  29  N.  H.  299  ;  Weeks  v.  Eaton, 
15  N.  H.  145 ;  Smith  v.  Smith,  id.  55.  In  these  last  cases,  however,  it  was  con- 
ceded, that,  if  the  mortgagee  was  in  possession,  his  deed  would  pass  his  rights  as 
mortgagee.  Wallace  v.  Goodall,  18  N.  H.  439,  and  Hinds  i-.  Ballou,  44  jST.  H.  619, 
621,  reaffirming  this  doctrine.  See  also  Hutchins  v.  Carleton,  19  N.  H.  487  ; 
Hobson  V.  Roles,  20  N.  H.  41.  And  an  unrecorded  assignment  of  the  debt  and 
mortgage  is  only  postponed  to  a  recorded  assignment  of  the  debt,  but  not  of  the 
mortgaged  premises  alone.  Purdy  v.  Huntington,  42  N.  Y.  334  ;  Kellogg  v.  Smith, 
26  N.  Y.  18. 

2  Peters  v.  Jamestown,  5  Cal.  334  ;  Nagle  v.  Macy,  9  Cal.  426  ;  Burdett  v. 
Clay,  8  B.  Mon.   287 ;  Willis  v.  Vallette,   4   Met.   186  ;  Martin  v.  McKeynolds, 

6  Mich.  70  ;  Ladue  v.  Detroit,  etc.  R.  R.,  13  Mich.  380  ;  Bailey  v.  Gould,  Walker, 
Ch.  478 ;  Hays  v.  Lewis,  17  Wis.  210  ;  Dick  v.  Mawry,  9  Sm.  &  M.  448  ;  Perkins 
r.  Sterne,  23  Tex.  563;  Rankin  v.  Major,  9  Iowa,  297;  Burton  v.  Hintrager,  18 
Iowa,  348  ;  Swan  v.  Yaple,  35  Iowa,  248  ;  Mack  v.  Wetzlar,  39  Cal.  247  ;  Yankton 
Building  &  L.  A.  v.  Dowling,  10  S.  Dak.  540  ;  s.  c.  74  N.  W.  438.  But  if  the 
assignment  of  the  mortgage  is  not  recorded,  strangers  without  notice  are  not  bound. 
Bank  v.  Anderson,  14  Iowa,  544.  In  Indiana,  the  contrary  rule  announced  in 
Givan  v.  Doe,  7  Blackf.  210,  seems  overruled  by  later  cases.     Hough  v.  Osborne, 

7  Ind.  140  ;  Johnson  v.  Cornett,  29  Ind.  59  ;  Hubbard  v.  Harrison,  38  Ind.  323. 
And  see  Blair  v.  Bass,  4  Blackf.  539.  On  the  other  hand,  the  rule  that  the  mort- 
gagee has  no  interest  at  law  except  the  debt,  which  formerly  obtained  in  Alabama, 
Doe  V.  McLoskey,  1  Ala.  708,  seems  now  altered.  Doe  v.  Phillips,  54  Ala.  309. 
In  Minnesota,  the  extent  of  the  doctrine  seems  to  be  that  a  mortgagee's  mere 
quitclaim  will  not  convey  any  interest.  Johnson  v.  Lewis,  13  Minn.  364 ;  Everest 
1-.  Ferris,  16  Minn.  426,  following  Hill  v.  Edwards,  11  Minn.  22,  29.  And  gen- 
erally  it  will  be  found  that  the  cases  holding  the  debt  the  principal,  and  the  mort- 
gage only  an  incident,  have  arisen  in  equity.     Cases  supra.     See  also  MuQuie  v. 


OF   THE   mortgagee's   INTEREST.  103 

qualification  that  after  entry  for  condition  broken  the  mort- 
gagee's conveyance  will  carry  the  debt,  if  it  appeared  to  be 
his  intention  to  assign.^ 

§  1054.  Mortgagee  as  Trustee  for  Mortgagor.  —  Until  fore- 
closure, a  mortgagee  in  possession  is  so  far  regarded  as  a  trus- 
tee of  the  mortgagor,  that  he  can  do  nothing  which  is  imposed 
upon  him,  or  which  he  acquires  a  right  to  do  by  virtue  of  his 
possession,  and  claim  a  personal  benefit  therefrom,  if  the 
mortgagor  offers  to  redeem.  Thus,  for  instance,  if  a  mort- 
gagee in  possession  suffer  the  land  to  be  sold  for  taxes,  and 
bid  the  estate  in,  in  his  own  name,  he  cannot  set  up  such 
title  against  his  mortgagor,  and  can  only  charge  what  he  paid 
to  save  the  estate  in  his  account  as  mortgagee.  ^  So  far  as  he 
holds  as  trustee,  it  is,  first,  for  his  own  security ;  second, 
any  surplus  for  the  benefit  of  the  mortgagor;  thirdly,  to 
reconvey  the  estate  on  being  paid  the  debt  within  the  time 
limited  by  the  statute,  and,  upon  such  redemption,  to  account 
for  the  rents  and  profits.  So  if,  as  such  mortgagee  in  posses- 
sion, he  avails  himself  of  the  right  to  renew  a  lease,  it  will 
be  deemed  for  the  benefit  of  the  party  who  is  entitled  to  the. 
estate. 3  But  he  is  not,  as  such  trustee,  under  any  obligation 
to  redeem  from  a  prior  mortgage,  or  do  any  act  to  prevent  a 
foreclosure  upon  such  mortgage.^ 

§  1055.  Mortgagee  as  Trustee  for  Assignee  of  Debt.  —  This, 
however,  bears  only  upon  the  legal  estate  of  the  holder  of  the 
mortgagee's  interest.  If,  before  such  foreclosure,  the  debt 
secured  had  been  assigned  to  a  third  person,  as  bona  fide 
holder,  the  mortgagee  or  his  assigns,  holders  of  the  legal 
estate,  would  be  trustees  thereof  for  the  benefit  of  the  cred- 
itor, with  all  the  duties  and  obligations,  in  equity,   of  trus- 

Peay,  58  Mo.  56  ;  Lawrence  v.  Knap,  1  Root,  248  ;  Humphrey  v.  Buisson,  19  Minn. 
221  ;  Emanuel  v.  Hunt,  2  Ala.  190  ;  Paine  v.  French,  4  Ohio,  318  ;  Heller  v.  Meis, 
52  Ohio  Sup.  Ct.  287. 

1  Watson  V.  Hutchins,  60  Mo.  550  ;  Pickett  v.  Jones,  63  Mo.  195  ;  Thayer  v. 
Campbell,  9  Mo.  277.  And  in  Indiana,  in  equity.  French  v.  Turner,  15  Ind.  59  ; 
Martin  v.  Reed,  30  Ind.  218.     See  also  Hill  v.  Edwards,  11  Minn.  22,  29. 

2  Story,  Eq.  §  1016  ;  Brown  v.  Simons,  44  N.  H.  475  ;  Stewart  v.  Crosby,  50 
Me.  134. 

3  Holridge  v.  Gillespie,  2  Johns.  Ch.  30,  33  ;  Rakestraw  v.  Brewer,  2  P.  Wms. 
511.     See  post,  §  1148  e<  seq. 

*  Mclntier  v.  Shaw,  6  Allen,  81,  85  ;  Bethlehem  v.  Annis,  40  X.  H.  40. 


104  MORTGAGES. 

tees,  which  will  be  hereafter  more  fully  explained.^  It  was 
accordingly  held  by  the  court  of  the  United  States,  that  the 
assignment  of  a  mortgage  debt  carries,  in  equity,  the  mort- 
gage by  which  it  is  secured.  ^  And  if  the  mortgage  be  fore- 
closed by  the  one  holding  the  legal  estate  in  the  mortgage,  it 
will  satisfy  and  bar  the  mortgage  notes  outstanding  in  the 
hands  of  others,  in  full  or  in  part,  according  to  the  value  of 
the  estate.  The  mortgagor  himself  is  discharged  by  such 
foreclosure,  leaving  the  holders  of  the  notes  to  adjust  the 
effect  of  the  satisfaction  between  themselves.^  And  the  same 
principle  applies  where,  as  in  England,  the  legal  estate  of  a 
mortgagee  descends  to  his  heirs,  while  the  debt  goes  to  his 
executors.  The  heir  becomes  trustee  for  the  holder  of  the 
debt>  As  full  force  and  effect  is,  in  this  way,  given  to  the 
equitable  assignment  of  mortgages  by  transferring  the  mort- 
gage debt,  as  in  those  States  in  which,  as  will  be  seen,  such 
a  transfer  operated  upon  the  legal  estate.  It  makes  such 
transferee  a  cestui  que  trust,  instead  of  an  owner  of  the  legal 
estate,  an  assignment  of  the  debt  being  an  equitable  assign- 
ment of  the  mortgagee's  interest,  though  it  has  no  direct 
effect  upon  the  title  to  the  legal  estate.^  Nor  could  the  mort- 
gagor, after  knowledge  of  such  transfer,  discharge  the  lien  en 
the  land  by  any  tender  or  payment  made  to  the  mortgagee ; 
nor  would  a  discharge  executed  by  the  mortgagee,  to  one 
knowing  of  such  transfer,  operate  to  discharge  the  lien  upon 
the  estate  existing  in  favor  of  the  holder  of  the  debt.^     And 

1  Story,  Eq.  Jur.  §  1023,  n.  ;  Crane  t;.  March,  4  Pick.  131  ;  Parsons  v.  Welles, 
17  Mass.  419  ;  Young  v.  Miller,  6  Gray,  152  ;  Bryant  v.  Damon,  id.  564  ;  Moore 
V.  Ware,  38  Me.  496  ;  Johnson  v.  Candage,  31  Me.  28;  Reading  of  Trowbridge,  J., 
8  Mass.  558  ;  AVarren  v.  Homestead,  33  Me.  256  ;  Lord  v.  Crowell,  75  Me.  399  ; 
Edgerton  v.  Young,  43  111.  464  ;  Foster  v.  Strong,  5  Bradw.  223 ;  Chic,  D.  &  V. 
R.  R.  V.  Lowenthal,  93  111.  433  ;  Center  v.  Plant.  Bk.,  22  Ala.  743  ;  Keyes  v. 
Wood,  21  Vt.  331  ;  Belcher  v.  Costello,  122  Mass.  189  :  Jlorris  v.  Bacon,  123 
Mass.  .58;  Welch  r.  Goodwin,  id.  71.  In  Blunt  v.  Norris,  id.  55,  and  Strong 
V.  Jackson,  id.  60,  the  transfer  of  the  mortgage  note  did  not  carry  the  mortgage, 
because  fraudulent,  or  with  implied  notice  of  fraud. 

2  Batesville  Inst.  v.  KaufFman,  18  Wall.  151. 

3  Haynes  v.  Wellington,  25  Me.  458  ;  Patten  v.  Pearson,  57  Me.  434. 
*  Wins.  Real  Prop.  354. 

5  Warren  v.  Homestead,  33  Me.  256;    Cutler  v.  Haven,  8  Pick.  490.     See  Bur- 
ton V.  Ba.xter,  7  Blackf.  297  ;  Graham  v.  Newman,  21  Ala.  497. 
s  Cutler  V.  Haven,  supra. 


OF   THE   mortgagee's   INTEREST.  105 

thus  in  substance  the  effect  is  the  same,  whether  the  transfer 
of  the  debt  operates  as  an  assignment  of  the  mortgage,  or  a 
mere  equitable  assignment  to  be  enforced  through  a  trustee.^ 

§  1056.  Assignment  by  Transfer  of  Mortgage  Debt.  —  In  New 
Hampshire,  as  a  rule  of  law,  the  transfer  of  a  mortgage  debt 
passes  the  interest  of  the  mortgagee  in  the  land  itself,  as 
completely  and  effectually  as  if  done  by  a  deed.  And  this 
transfer  may  be  made  by  parol,  though  the  debt  is  not  nego- 
tiable in  form,  nor  so  transferred  as  that  the  assignee  could 
maintain  an  action  at  law  in  his  own  name  to  recover  it.2 
Several  other  States  coincide  substantially  in  giving  to  the 
transfer  of  the  mortgage  debt  the  full  effect  of  a  transfer  of 
the  mortgage  also ;  but  these  are  mostly  where  the  mortgage 
creates  a  lien  only.^     But  such  is  not  the  law  in  Massachu- 

1  Brown  v.  Blydenburgli,  7  N.  Y.  141;  Page  v.  Pierce,  26  N.  H.  317;  Steven- 
son V.  Black,  1  N.  J.  E(i.338  ;  Keyes  v.  Wood,  21  Vt.  339  ;  Donley  v.  Hays,  17 
S.  &  R.  400  ;  Pattison  v.  Hull,  9  Cow.  747  ;  Henderson  v.  Herrod,  10  S.  &  M. 
631  ;  CuUum  v.  Erwin,  4  Ala.  452 ;  Phelan  v.  Olney,  6  Cal.  478 ;  Johnson  v. 
Brown,  31  N.  H.  405.  In  Waterman  v.  Hunt,  2  R.  I.  298,  it  was  held  that  two 
assignees  of  two  distinct  debts,  secured  by  the  same  mortgage,  have  equal  equities 
as  to  their  respective  debts  in  respect  to  the  mortgage,  though  it  was  assigned  to 
one  only  of  them.  See  Gregory  v.  Savage,  32  Conn.  250  ;  Henderson  v.  Pilgrim, 
22  Tex.  464  ;  Foley  v.  Rose,  123  Mass.  557. 

2  Rigney  v.  Lovejoy,  13  N.  H.  247  ;  Smith  v.  Moore,  11  N.  H.  55 ;  Southerin 
V.  Mendura,  5  N.  H.  420  ;  Blake  v.  Williams,  36  N.  H.  39  ;  Northy  v.  Xorthy, 
45  N.  H.  144  ;  Whittemore  v.  Gibbs,  24  N.  H.  484. 

3  Green  v.  Hart,  1  Johns.  580 ;  Jackson  v.  Blodget,  5  Cow.  202 ;  Wilson  v. 
Troup,  2  Cow.  231  ;  Jackson  v.  Bronson,  19  Johns.  325 ;  Runyau  v.  ]\Iersereau, 
11  Johns.  534  ;  Miles  v.  Gray,  4  B.  Mon.  417  ;  Crow  v.  Vance,  4  Iowa,  434  ; 
Vimont  v.  Stitt,  6  B.  Mon.  477  ;  Wilson  v.  Hayward,  2  Fla.  27  ;  and  6  Fla.  171 ; 
Dick  V.  Mawry,  9  Sm.  &  M.  448  ;  Burdett  v.  Clay,  8  B.  Mon.  287  ;  Dougherty  v. 
Randall,  3  Mich.  581  ;  Ladue  v.  Detroit,  etc.  R.  R.,  13  Mich.  396  ;  Ord  v.  McKee, 
5  Cal.  515 ;  Phelan  v.  Olnev,  6  Cal.  478 ;  Willis  v.  Farley,  24  Cal.  490 ;  Fisher 
jj.  Otis,  3  Chand.  (Wis.)  83;  Martineau  v.  M'Colhun,  4  Chand.  (Wis.)  153. 
So  Martin  v.  McReynolds,  6  Mich.  70  ;  Cooper  v.  Ulmann,  Walker,  Ch.  251  ; 
Kortright  v.  Cady,  21  N.  Y.  343,  364  ;  Wright  v.  Eaves,  10  Rich.  Eq.  582  ;  Perkins 
V.  Sterne,  23  Tex.  563;  Rankin  v.  Major,  9  Iowa,  297;  Burhans  v.  Hutcheson, 
25  Kan.  625  ;  Donaldson  v.  Grant,  15  Utah,  231  ;  s.  c.  49  Pac.  Rep.  779  ;  Ger- 
man-American Bk.  V.  Carondelet  Real-Est.  Co.,  150  Mo.  570  ;  s.  c.  51  S.  W.  Rep. 
691  ;  Fred  Miller  Brewing  Co.  v.  Manasse,  99  Wis.  99  ;  s.  c.  74  N.  W.  Rep.  535  ; 
Anderson  v.  Kreidler,  56  Neb.  171 ;  s.  c.  76  N.  W.  Rep.  581  ;  Greeley  State  Bank 
V.  Line,  50  Neb.  434,  which  was  a  case  of  equitable  assignment  of  the  note  by  de- 
livery, without  indorsement ;  Franke  v.  Neisler,  97  Wis.  364  ;  s.  c.  72  N.  W.  Rep. 
887  ;  Perrin  v.  Trimble  (Tenn.  Ch.  App.),  48  S.  W.  Rep.  125;  Robinson  Female 
Seminary  v.  Campbell,  60  Kan.  60 ;  s.  c.  55  Pac.  Rep.  276.     In  Pennsylvania,  the 


106  MORTGAGES. 

setts  and  other  States,  where  a  mortgage  creates  an  estate.^ 
[An  assignment  by  indorsement  of  the  mortgage  note  or  by 
mere  delivery  of  the  evidence  of  the  debt  is  attended  by  the 
inconvenience  that  the  registry  laws  generally  make  no  pro- 
vision by  which  such  an  assignment  can  be  recorded  to  give 
notice  to  subsequent  grantees  and  lienors,  ^  and  when  the 
mortgage  is  paid  it  may  be  found  practically  difficult  to 
secure  a  proper  cancellation  upon  the  record.  But  posses- 
sion of  the  evidence  of  debt  and  of  the  mortgage  is  notice  to 
a  subsequent  assignee.^] 

§  1057.  Several  Debts  secured  by  Same  Mortgage.  —  As  a 
general  proposition,  if  there  are  several  debts  secured  by  the 
same  mortgage,  and  these  have  been  successively  assigned, 
the  assignees  will  share  the  benefit  of  the  security  ^ro  rata.^ 
It  was  accordingly  held  that  the  holder  of  a  coupon  taken 
from  a  bond  which  was  secured  by  mortgage  had  a  lien  upon 
the  mortgaged  property;^  though  in  some  of  the  States  the 
equities  of  the  parties  in  such  case  attach  to  the  assignees 
according  to  the  order  of  priority  in  time  of  assignment.^ 
But  if  the  debts  secured  by  the  same  mortgage  are  payable  at 
different  times,  they  are  to  be  paid  from  the  mortgage  fund 

broad  language  of  the  early  cases,  Richert  v.  Madeira,  1  Rawle,  325  ;  Betz  v.  Heeb- 
ner,  1  Penn.  280  ;  Donley  v.  Hays,  17  S.  &  R.  400  ;  Craft  v.  Webster,  4  Rawle, 
242 ;  Mott  v.  Clark,  9  Penn.  St.  399,  406,  seems  qualified  by  Phillips  v.  Lewiston 
Bk.,  18  Penn.  St.  394. 

1  Symes  v.  Hill,  Quincy  R.  318;  Young  v.  Miller,  6  Gray,  152.  Thus  in  Illi- 
nois, Missouri,  Connecticut,  and  Alabama,  the  transfer  of  the  note  alone  carries 
only  an  equitable  right  in  the  real  estate.  Ante,  §§  1052,  1053,  n.,  and  1054,  n., 
and  cases  cited  ;  Anderson  v.  Baumgartner,  27  Mo.  80;  Gregorys.  Savage,  32  Conn. 
250 ;  Potter  v.  McDowell,  43  Mo.  93.  And  perhaps  also  in  Indiana  since  R.  S. 
1881,  §  1093.     Bourland  v.  Kipp,  55  111.  376. 

2  See  Donaldson  v.  Grant,  15  Utah,  231 ;  s.  c.  49  Pac.  Rep.  779. 

3  Fred  Miller  Brewing  Co.  v.  Manasse,  99  Wis.  99  ;  s.  c.  74  N.  W.  Rep.  535. 

*  Waterman  v.  Hunt,  2  R.  I.  298 ;  Henderson  v.  Herrod,  23  Miss.  434  ;  Keyes 
V.  Wood,  21  Vt.  331  ;  Pattison  v.  Hull,  9  Cow.  747  ;  Phelan  v.  Olney,  6  Gal.  478  ; 
M'Clanahan  v.  Chambers,  1  Mon.  44  ;  Mohler's  App.,  5  Penn.  St.  418  ;  Bank  of 
Eng.  V.  Tarleton,  23  Miss.  173;  Parker  v.  Mercer,  6  How.  (Miss.)  320;  Terry  «), 
Woods,  6Sm.  &  M.  139  ;  Swartz  v.  Leist,  13  Ohio  St.  419.  See  Page  v.  Pierce, 
26  N.  H.  317. 

5  Mellen  v.  Rutland,  etc.  R.  R.,  40  Vt.  399.  See  Arents  v.  Commonwealth,  18 
Gratt.  750. 

6  Cullum  V.  Erwin,  4  Ala.  452  ;  Mobile  Bk.  v.  Planters'  Bk.,  9  Ala.  645.  See 
also  State  Bk.  v.  Tweedy,  8  Blackf.  447. 


OF   THE   mortgagee's   INTEREST.  107 

in  the  order  in  which  they  are  due.^  But  it  was  held  in 
Michigan  and  Maryhmd  that  if  a  mortgage  secures  several 
successive  notes,  or  a  debt  payable  in  instalments,  neither 
has  precedence  in  equity  to  the  benefit  of  the  mortgage,  as 
would  be  the  case  in  successive  mortgages.  They  are  to  be 
paid  ratably  out  of  the  estate  if  it  is  insufiicient  to  satisfy  the 
whole. 2  And  it  is  always  competent  for  the  holder  of  a  mort- 
gage made  to  secure  several  debts,  so  long  as  he  retains  them, 
to  assign  one  or  more  of  them  in  such  a  manner  as  to  give  the 
holder  a  preference  as  to  these  over  the  other  debts.  ^  On 
the  other  hand,  where  a  mortgage  secured  three  notes,  and 
the  mortgagee  assigned  two  of  them  with  the  mortgage,  but 
not  to  affect  his  interest  in  the  mortgage  as  security  for  the 
other  note,  and  then  assigned  the  other  note  to  another  per- 
son, and  the  first  assignee  foreclosed  the  mortgage,  it  was 
held  that  he  only  acquired  thereby  a  pro  rata  share  of  the 
estate  in  common  with  the  mortgagee,  and  for  himself  alone, 
and  not  in  trust  for  the  holder  of  the  other  note.  The  action 
of  the  assignee  had  no  effect  upon  the  rights  of  such  holder 
of  the  other  note ;  he  only  foreclosed  to  the  extent  of  his  own 
interest.^  From  this  doctrine,  that  the  transfer  of  the  debt 
passes  the  mortgage  interest  in  the  land,  questions  of  no  in- 
considerable difficulty  have  arisen,  where  the  same  mortgage 
deed  secures  several  distinct  debts,  like  several  notes  of  hand, 
and  these  have  been  transferred  to  different  individuals  with- 
out a  formal  assignment  of  the  mortgage.  In  Alabama  and 
several  other  States,  it  is  considered  as  a  separate  mortgage 
in  respect  to  each  debt,  and  an  assignment  of  one  of  these 
debts  carries  with  it  its  proportion  of  the  mortgage  interest ;  ^ 

1  U.  S.  Bk.  V.  Covert,  13  Ohio,  240  ;  Hunt  v.  Stiles,  10  N.  H.  466;  Wood  v. 
Trask,  7  Wis.  566  ;  Wilson  v.  Hayward,  6  Fla.  171  ;  Marine  Bk.  v.  Internat.  Bk., 
9  Wis.  57  ;  Stevenson  v.  Black,  1  N.  J.  Eq.  338. 

2  McCurdy  v.  Clark,  27  Mich.  445 ;  Dixon  v.  Clayville,  44  Md.  573.  So  Min- 
nesota.    Wilson  V.  Eigenbrodt,  30  Minn.  4  ;  Hall  v.  McConnick,  31  Minn.  280. 

3  Bryant  v.  Damon,  6  Gray,  164  ;  Bank  of  Eng.  r.  Tarleton,  23  Miss.  173  ; 
Mechanics'  Bk.  v.  Bk.  of  Niagara,  9  Wend.  410;  Cullum  v.  Erwin,  4  Ala.  452; 
Laugdon  v.  Keith,  9  Vt.  299  ;  Grattan  v.  Wiggins,  23  Cal.  16,  30  ;  Walker  r.  De- 
ment, 42  111.  272.  So  Foley  v.  Rose,  123  Mass.  557,  where  the  mortgage  was 
assigned,  "  so  far  as  the  same  is  security  "  for  the  note  transferred,  a  preference  was 
given  over  the  note  retained. 

*  Lane  v.  Davis,  14  Allen,  225. 

^  McVay  r.  Bloodgood,  9   Port.  (Ala.)  547;  Wilson  v.  Hayward,  6  Fla.   171; 


108  MORTGAGES. 

and  in  the  distribution  of  the  proceeds  resulting  from  a  sale 
of  mortgaged  premises,  or  from  insurance  paid  upon  the  same, 
if  such  proceeds  are  insufficient  to  satisfy  all  the  debts  se- 
cured, in  full,  they  are  paid  to  the  several  holders  in  the 
order  in  which  their  debts  or  notes  became  due.  These  are, 
in  fact,  treated  as  separate  successive  mortgages.^  And 
where  the  holder  of  the  second  pays  the  first,  in  order  to 
redeem  from  that,  he  may,  when  he  forecloses,  include  his 
own  and  the  prior  note  which  he  has  paid.^  In  California, 
Mississippi,  and  Pennsylvania,  on  the  contrary,  such  proceeds 
are  distributable  2^'>'o  rata  among  the  holders  of  the  secured 
debts  and  notes.^  But  in  Illinois  and  Indiana,  where  one 
purchased  the  mortgaged  premises,  assuming  a  third  note, 
which  the  mortgagee  had  foreclosed,  the  mortgagee  was  held 
estopped  to  proceed  to  foreclose  two  earlier  notes  secured  by 
the  same  mortgage.^  In  Maine,  if  a  mortgage  be  made  to 
several  to  secure  separate  debts,  it  creates  a  tenancy  in  com- 
mon in  the  mortgagees.  They  may  join  in  a  suit  upon  it,  or 
sue  alone.  ^ 

§  1058.  Assignment  as  affected  by  Lavr  of  Place.  —  It  is 
assumed  in  one  case  that  the  rights  of  parties  in  respect  to 
the  assignment  of  a  debt  secured  by  mortgage  will  be  gov- 
erned by  the  law  of  the  place  where  the  agreement  is  made.^ 
But  if  it  is  to  be  regarded  as  a  transfer  of  a  legal  interest  in 
real  estate,  it  would  seem  that  the  mode  of  making  it  should 
be  governed  by  the  lex  rei  sitae,  the  law  of  the  place  where  the 
land  is  situate.'' 

Reeder  v.  Carey,  13  Iowa,  274  ;  Isett  v.  Lucas,  17  Iowa,  503  ;  Funk  v.  ircRe}'nold, 
33  111.  481,  497  ;  Flower  v.  Elwood,  66  111.  438  ;  Minor  v.  Hill,  58  Ind.  176  ;  Lar- 
rabee  v.  Lumbert,  32  Me.  97  ;  Mitchell  v.  Ladew,  36  Mo.  526  ;  Bk.  U.  S.  v.  Covert, 
13  Ohio,  240  ;  Gwathmeys  v.  Raglaud,  1  Rand.  466  ;  Wood  v.  Trask,  7  Wi.s.  566. 

1  Cases  supra;  Rankin  v.  Major,  9  Iowa,  297  ;  Koester  v.  Burke,  81  111.  436. 

2  Preston  v.  Hodgen,  50  111.  56. 

3  Grattan  v.  Wiggins,  23  Cal.  16  ;  Henderson  v.  Herrod,  23  Miss.  631  ;  Donley 
V.  Hays,  17  S.  &  R.  400. 

4  Rains  v.  Mann,  68  111.  264  ;  Hughes  v.  Frisby,  81  111.  188  ;  Minor  v.  Hill,  58 
Ind.  176. 

s  Brown  v.  Bates,  55  Me.  520. 

6  Bank  of  Eng.  v.  Tarleton,  23  Miss.  173.  See  also  Dundas  v.  Bowler,  3  Mc- 
Lean, 397. 

■?  Story,  Confl.  Laws,  §§  363,  364  ;  Westlake,  Confl.  Laws,  §  86 ;  Goddard  v. 
Sawyer,  9  Allen,  78. 


OF  THE   mortgagee's   INTEREST.  109 

§  1059.  Equities  of  Assignees.  —  [A  mortgage  is  not  iiegoti- 
al)le;  consequently,  in  those  States  in  which  the  mortgage 
creates  an  estate,  any  assignee  thereof  takes  it  subject  to 
equities  existing  between  the  original  parties.^  The  same  is 
true  under  the  lien  theory  if  the  secured  debt  is  non-negoti- 
able in  form.  But  under  the  lien  theory  it  is  generally  held 
that  a  bona  fide  indorsee  of  a  negotiable  note  secured  by  mort- 
gage is  entitled  to  enforce  the  security  notwithstanding  the 
equities  existing  between  the  original  parties. ^  But  the  rule 
has  no  application  unless  the  assignee  is  entitled,  under  the 
law  merchant  as  indorsee  of  a  negotiable  instrument,  to  the 
privileges  of  a  bona  fide  indorsee  against  the  maker. ^J 

§  1060.  Legal  Remedy  of  Equitable  Assignee.  —  There  are 
various  modes  of  foreclosure.  In  some  of  the  States,  as  will 
hereafter  be  shown  when  considering  the  subject  of  foreclos- 
ure, this  remedy  is  attained  by  sale  of  the  mortgaged  prem- 
ises according  to  the  prescribed  forms  of  law.  In  most  of 
the  States,  the  remedy  of  the  mortgagee  is  by  proceedings  in 
equity;  in  some,  by  what  is  called  a  strict  foreclosure,  such 
as  is  usually  pursued  in  England ;  in  others,  by  some  other 
form,  which,  as  courts  having  equity  powers,  they  are  author- 
ized to  apply.  In  such  cases  there  is  no  incongruity  in  treat- 
ing an  assignment  by  parol,  as,  for  instance,  by  a  delivery  of 
the  mortgage  with  the  evidence  of  the  debt  thereby  secured, 
as  good  and  sufficient  to  pass  the  real  estate  itself.  But  to 
treat  such  an  equitable  assignment  as  conveying  a  legal  estate 
in  the  land,  and  giving  such  assignee  a  right  to  recover  in  a 
court  of  common  law,  upon  his  own  seisin,  is  apt  to  strike 
the  mind  as  an  essential  departure  from  the  known  rules  gov- 

1  Faris  v.  Briscoe,  78  111.  App.  242  ;  Denison  v.  Gambill,  81  111.  App.  170  ; 
Shippen  v.  Whittier,  117  111.  282  ;  s.  c.  7  N.  E.  Rep.  642.  And  see  Motfett  v. 
Parker,  71  Minn.  139  ;  s.  c.  73  N.  W.  Rep.  850.  But  the  assignee  does  not  take 
subject  to  equities  of  third  parties  of  which  he  had  no  notice.  Humble  v.  Curtis, 
160  111.  193  ;  s.  c.  43  N.  E.  Rep.  749. 

2  First  Nat.  Bank  v.  Robrer,  138  Mo.  369  ;  s.  c.  39  S.  W.  Rep.  1047  ;  Crawford 
V.  Aultman,  139  Mo.  262  ;  s.  c.  40  S.  W.  Rep.  952  ;  Borgess  Investment  Co.  v. 
Vette,  142  Mo.  560  ;  s.  c.  44  S.W.  Rep.  754  ;  Thompson  v.  Maddux,  117  Ala.  468; 
s.  c.  23  So.  Rep.  157  ;  Mack  v.  Prang,  104  Wis.  1  ;  s.  c.  79  N.  W.  Rep.  770  ;  s.  c. 
45  L.  R.  A.  407. 

3  Ingraham  v.  Disborough,  47  N.  Y.  421 ;  Davis  i-.  Rechstein,  69  N.  Y.  440  ; 
Hill  V.  Hoole,  116  N.  Y.  299  ;  Kapps  v.  Gottlieb,  142  N.  Y.  164  ;  s.  c.  36  N.  E. 
1052. 


110  MORTGAGES. 

erning  the  titles  and  conveyances  of  lands.  But  such  seems 
to  be  the  rule  of  law  sustained  by  a  series  of  decisions  in  the 
courts  of  New  Hampshire.  Thus  in  Southerin  v.  Mendum, 
•which  was  a  writ  of  entry,  wherein  the  demandants  counted 
upon  their  own  seisin^  the  tenant  had  made  a  note  payable  to 
one  M.  or  bearer,  and  a  mortgage  to  him  to  secure  it.  The 
attorney  of  M.  delivered  the  note  to  the  demandants,  and  it 
was  held  by  the  court  that  "  they  [the  demandants]  thus  be- 
came the  legal  holders  of  the  note,  and  as  such  were  entitled 
to  maintain  an  action  on  the  mortgage  in  their  own  names  as 
assignees  without  any  other  evidence  of  assignment."^  And 
one  of  several  mortgagees  or  assignees  may  join  the  others  in  a 
suit  at  law  upon  the  mortgage,  giving  security  for  costs,  and 
the  judgment  would  be  upon  the  whole  land.^ 

§  1061.  What  will  divest  Mortgagee's  Seisin  or  Interest.  — 
If  the  mortgagee  gain  possession  of  the  premises  before  con- 
dition broken,  the  payment,  cancelling,  or  discharging  of  the 
debt,  before  that  has  happened,  defeats  his  estate.  And  this, 
it  is  believed,  is  universally  applicable  in  this  country,  as 
well  as  in  England.  The  effect  of  a  payment  or  cancelling 
of  the  debt  after  condition  broken  is  different  in  different 
States,  and  in  the  same  State  under  different  circumstances. 
Thus,  in  Massachusetts  and  Maine,  for  instance,  if  the  mort- 
gagee sues  to  enforce  his  mortgage,  and  declares  upon  it  as 
such,  he  can  only  have  a  judgment  for  possession  after  so 
many  days,  if  the  mortgagor  fails  before  that  time  to  pay  a 
liquidated  sum,  being  the  amount  due ;  so  that  if  the  debt  has 
really  been  paid,  it  operates  as  an  effectual  discharge  of  the 
mortgage,  since  it  can  no  longer  be  enforced.  ^    And  the  same 

1  Southerin  v.  Mendum,  5  N.  H.  420  ;  Smith  v.  Moore,  11  N.  H.  55  ;  Eigney 
V.  Lovejoy,  13  N.  H.  247;  Page  v.  Pierce,  26  N.  H.  317.  If  any  other  State 
adopts  the  same  doctrine,  the  authority  for  the  same  has  been  overlooked.  The 
language  of  the  eminent  jurist,  then  Ch.  J.,  in  Smith  v.  Moore,  p.  55,  in  view  of 
the  law  on  this  subject,  is :  "  Unless  the  different  purposes  of  a  mortgage  are  ad- 
verted to,  there  would  appear  to  be  much  confusion  in  the  books  relative  to  the 
rights  of  the  mortgagor  and  mortgagee ;  and  with  those  purposes  in  view,  an 
attempt  to  reconcile  them  would  be  made  in  vain."  Some  may  think  the  Massa- 
chusetts system  less  obnoxious  to  the  objection  of  confusion  than  that  of  New 
Hampshire. 

2  Johnson  v.  Brown,  31  N.  H.  405. 

8  Wade  V.  Howard,  11  Pick.  289  ;  Fay  v.  Cheney,  14  Pick.  399  ;  Slay  ton  v. 
Mclntyre,   11  Gray,  271 ;  Baker  v.  Gavitt,  128  Mass.  93  ;  Vose  v.  Handy,  2  Me. 


OP  THE   mortgagee's   INTEREST.  Ill 

effect,  though  in  somewhat  different  form,  would  be  produced 
by  a  like  payment  or  discharge  in  Pennsylvania  and  Mary- 
land.^ But  if  the  mortgagee  shall  have  obtained  possession 
by  judgment  or  otherwise  for  condition  broken,  and  the  debt 
is  satisfied  while  he  is  so  in  possession,  the  mortgagor  is  not 
remitted  to  his  legal  seisin  and  estate,  nor  is  the  seisin  and 
estate  of  the  mortgagee  defeated.  The  mortgagor's  remedy 
in  such  a  case  is  by  a  bill  in  equity;  and  if  he  enters  upon 
the  mortgagee  without  a  proper  decree,  he  may  be  treated  as 
a  trespasser.^  It  would  be  otherwise,  however,  if  the  mort- 
gagee were  to  take  possession  after  his  debt  had  been  satis- 
fied. ^  Accordingly,  in  England,  Massachusetts,  and  Maine, 
it  requires  a  deed  of  conveyance  or  release  in  such  a  case  to 
divest  the  mortgagee  of  his  seisin  and  estate,  and  a  tender  of 
the  debt  after  condition  broken  will  not  have  the  effect  to  dis- 
charge the  mortgage.^  And  in  Illinois,  if  the  mortgagee  have 
entered  for  condition  broken,  and  the  debt  be  paid,  the  mort- 
gagor may  have  ejectment  against  him  to  recover  possession 
of  the  premises.^  But  in  those  States  where  a  transfer  or 
extinguishment  of  the  debt  is  a  transfer  or  extinguishment  of 
the  mortgage  estate,  a  payment  or  a  voluntary  forgiving  of 
the  debt  has  the  same  effect,  even  if  done  after  condition 
broken.^     So  where  a  mortgage  was  assigned  to  several,  an 

322  ;  Gray  v.  Jenks,  3  Mason,  520 ;  Williams  v.  Thurlow,  31  Me.  392 ;  Stewart 
V.  Crosby,  50  Me.  134  ;  Webb  v.  Flanders,  32  Me.  175.  So  in  Pike  v.  Goodnow, 
12  Allen,  472,  where  the  mortgagee  by  his  dealings  with  a  part  of  the  mortgaged 
estate  so  satisfied  the  mortgage  debt  that  he  could  not  recover  possession  of  the 
other  portion  of  the  estate  in  an  action  on  his  mortgage  ;  ante,  §  1060. 

1  Craft  V.  Webster,  4  Rawle,  242,  253;  Paxon  v.  Paul,  3  Har.  &  McH.  399. 
So  in  New  Jersey.     Shields  v.  Lozear,  34  N.  J.  496,  504. 

2  Wilson  V.  Ring,  40  Me.  116  ;  Hill  v.  Moore,  id.  515  ;  Pearce  v.  Savage, 
45  Me.  90  ;  Pratt  v.  Skolfield,  id.  386  ;  Rowell  v.  Mitchell,  68  Me.  21  ;  Howe 
V.  Lewis,  14  Pick.  329;  Parsons  v.  Welles,  17  Mass.  419;  Howard  !\  Howard, 
3  Met.  557  ;  Conner  i;.  Whitmore,  52  Me.  185.  So  in  Connecticut,  Virginia,  and 
Mississippi.  Smith  r.Vincent,  15  Conn.  1  ;  Dudley  v.  Cadwell,  19  Conn.  218  ; 
Cross  V.  Robinson,  21  Conn.  379  ;  Norwich  v.  Hubbard,  22  Conn.  587  ;  Faulkner 
V.  Brockenbrough,  4  Rand.  245  ;  Wolfe  v.  Dowell,  13  Sm.  &  M.  103.  And  formerly 
in  Kentucky.     Breckenridge  v.  Brook,  2  A.  K.  Marsh.  335. 

«  Sibley  v.  Rider,  54  Me.  463  ;  Baker  v.  Gavitt,  128  Mass.  93. 
*  Currier  v.  Gale,  9  Allen,  522 ;  Maynard  t?.   Hunt,  5  Pick.  240  ;  Mitcliell  v. 
Burnham,  44  Me.  286. 
6  Holt  V.  Rees.  44  111.  30. 
8  Hawkins  v.  King,  2  A.   K.  Marsh.  108  ;  Barnes  v.  Lee,  1  Bibb,  526 ;  Craft 


112  MOETGAGES. 

aliquot  part  of  the  debt  to  each,  the  payment  of  the  share  of 
any  one  of  these  extinguishes  his  interest  in  the  mortgage.  ^ 
So  a  payment  of  the  mortgage-debt  rescinds  the  power  of  sale 
which  may  have  been  contained  in  the  mortgage-deed  ;2  and 
a  tender  of  the  debt,  after  the  day  of  payment,  bars  the  right 
to  recover  the  land  under  the  mortgage.^ 

§  1062.  Enforcing  Mortgages  on  Different  Parcels.  —  After  a 
mortgagee  has  assigned  the  mortgage,  he  can  discharge  no 
part  of  the  premises  from  the  mortgage  by  any  formal  re- 
lease.^ But  while  he  holds  it,  he  is  not  obliged  to  enforce  it 
fro  rata  upon  the  several  parcels  embraced  in  the  same, 
though  belonging  to  different  persons.  He  has  his  election 
to  enforce  it  upon  all  or  any  number  of  these.^  Any  agree- 
ment by  parol  at  the  time  of  making  the  mortgage,  embrac- 
ing several  parcels,  to  discharge  any  one  of  them,  upon  the 
payment  of  a  certain  sum,  is  inoperative.  Nor  can  a  mort- 
gagee in  such  a  case,  by  releasing  one  or  more  of  such  par- 
cels, throw  more  than  a  pro  rata  share  of  the  mortgage-debt 
upon  the  other  parcels,  while  in  the  hands  of  other  persons 
than  him  by  whom  the  agreement  for  such  release  is  made.^ 
And  in  one  case,  the  court  of  Wisconsin  carried  this  doctrine 
to  the  extent,  that  if  there  are  two  successive  mortgages,  or 
a  mortgage  and  a  subsequent  grant  of  an  estate,  and  the 
holder  of  the  first  mortgage  release  the  personal  liability  of 
the  mortgagor   for   his   debt,   he  would   thereby  release  his 

V.  Webster,  4  Rawle,  253  ;  Jackson  v.  Bronson,  19  Johns.  325  ;  Paxon  v.  Paul, 
3  Har.  &  McH.  399  ;  Morgan  v.  Davis,  2  Har.  &  McH.  9  ;  Berry  v.  Derwart,  55 
Md.  66,  73  ;  Rickert  v.  Madeira,  1  Rawle,  325  ;  Runyan  v.  Mersereau,  11  Johns. 
534;  Cameron  v.  Irwin,  5  Hill,  272;  Waring  u.  Smyth,  2  Barb.  Ch.  119;  Hadley 
V.  Chapin,  11  Paige,  245  ;  Blodgett  ?•.  Wadhanis,  Hill  &  D.  65  ;  Anderson  v.  NeflF, 
11  S.  &  R.  208  ;  Armitage  v.  Wickliffe,  12  B.  Mon.  488  ;  Perkins  v.  Dibble,  10  Ohio, 
433  ;  Thomas'  App.,  30  Penn.  St.  378  ;  McMillan  v.  Richards,  9  Cal.  365  ;  Fisher 
V.  Otis,  3  Chand.  (Wis.)  83  ;  Ladue  v.  Detroit,  etc.  R.  R.,  13  Mich.  380,  396  ; 
Rj'an  V.  Dunlap,  17  111.  40;  Sherman  v.  Sherman,  3  Ind.  337. 

1  Furbush  v.  Goodwin,  25  N.  H.  425  ;  Burnett  v.  Pratt,  22  Pick.  556. 

2  Cameron  v.  Irwin,  5  Hill,  272. 

8  Arnot  V.  Post,  6  Hill,  65 ;  Farmers'  Co.  v.  Edwards,  26  Wend.  541  ;  Trimm 
V,  Marsh,  54  N.  Y.  599;  Jackson  v.  Crafts,  18  Johns.  115  ;  Kortright  v.  Cady, 
21  N.  Y.  343. 

*  M'Cormick  v.  Digby,  8  Blackf.  99. 

6  Hughes  V.  Edwards,  9  Wheat.  489. 

''  Stevens  v.  Cooper,  1  Johns.  Ch.  425  ;  Johnson  v.  Johnson,  8  N.  J.  Eq.  561. 


OF   THE    mortgagee's   INTEREST.  113 

claim  under  the  mortgage  as  against  such  second  mortgagee 
or  purchaser.  1  So,  when  a  first  mortgagee,  with  the  knowl- 
edge that  a  subsequent  mortgage  has  been  made  upon  a  part 
of  the  premises  included  in  his  mortgage,  releases  a  part  or 
all  that  portion  of  the  premises  which  is  not  included  in  the 
second  mortgage,  and  the  remaining  i)ai't  of  the  estate  is  not 
sufficient  to  pay  both  mortgages,  the  first  will  be  postponed 
to  the  second  in  applying  the  proceeds  of  the  sale  of  the  re- 
maining part,  to  the  extent  that  the  second  mortgagee  was 
injured  by  the  release.  But  the  knowledge  of  the  second 
mortgage,  and  that  such  release  will  injuriously  affect  that 
mortgagee,  must  be  clearly  brought  home  to  the  first  mort- 
gagee in  order  to  affect  him.  The  mere  record  of  the  second 
mortgage  is  not  notice  to  the  first  mortgagee. ^  On  the  other 
hand,  the  assignee  of  a  mortgage  cannot,  as  a  general  i)ropo- 
sition,  enforce  it  for  more  than  was  actually  due  from  the 
mortgagor  to  the  mortgagee  when  it  was  assigned.^  Nor 
would  the  assignee  of  the  mortgagor  be  estopped  to  show 
part  payment  of  the  mortgage-debt  made  before  such  assign- 
ment, although  the  estate  was  conveyed  to  him  subject  to  the 
mortgage-debt.*  But  in  those  States  where  a  payment  of  the 
debt  does  not,  ipso  facto,  discharge  the  mortgage,  a  parol 
agreement  not  to  claim  under  the  mortgage  while  the  debt 
remains  could  not  be  enforced.^ 

§  1063.  Payment  working  Equitable  Assignment.  —  [But 
while  payment  of  the  debt,  by  whomsoever  made,  operates  to 
extinguish  the  mortgage  so  far  as  the  mortgagee  is  concerned, 
either  by  divesting  his  seisin  at  law  or  by  preventing  him 
from  enforcing  the  mortgage  in  equity,  such  payment  some- 
times works,  by  operation  of  law,  an  assignment  of  the  mort- 
gage security  enforceable  in  whole  or  in  part  against  the  land 

1  Coyle  y.Davis,  20  Wis.  564,  568.     And  see  post,  §  1132. 

2  James  !•.  Brown,  11  Mich.  25;  Reilly  v.  Mayer,  12  N.  J.  Eq.  55,  59  ;  Blair 
V.  Ward,  10  N.  J.  Eq.  119,  126  ;  Guion  i;.  Knapp,  6  Paige,  35,  43  ;  Cheesebrough 
V.  Millard,  1  Johns.  Ch.  401,  414  ;  Salem  v.  E.lgerly,  33  X.  H.  46,  50  ;  Brown  v. 
Simons,  45  N.  H.  211  ;  Barr  v.  Kinard,  4  Strobh.  73  ;  Iglehart  v.  Crane,  42  111. 
261  ;  Wore.  Sav.  Bk.  v.  Thayer,  136  Mass.  459  ;  and  the  contrary  doctrine  stated 
in  Johnson  v.  Johnson,  supra,  seems  clearly  overruled. 

3  Matthews  v.  Wallwyn,  4  Ves.  118. 

*  Hartley  v.  Tatham,  2  Abb.  (N.  Y.)  333,  337,  339. 

6  Parker  v.  Barker,  2  Met.  423  ;  Hunt  v.  Maynard,  6  Pick.  489. 

VOL.    II. — 8 


114  MORTGAGES. 

according  as  the  one  paying  has  a  right  to  be  reimbursed,  by 
others  interested  in  the  land,  either  in  whole  or  in  part.  The 
rule  is  this :]  If  one  having  a  right  to  redeem  mortgaged 
premises  pay  the  debt,  it  will  be  treated  as  an  assignment  to 
him  of  the  mortgage,  if  it  is  manifestly  for  his  interest,  where 
the  contrary  is  not  clearly  expressed  or  necessarily  implied.^ 
[Thus,  as  will  be  fully  explained  hereafter,^  if  the  purchaser 
of  the  equity  of  redemption  have  assumed  the  debt,  and  the 
mortgagor,  being  personally  liable,  be  forced  to  pay,  he  will  be 
subrogated  to  the  mortgagee's  rights.  So,  if  a  junior  incum- 
brancer pay  the  mortgage.  And  if  the  debt  be  paid  by  one  of 
several  co-redemptioners  whose  equities  are  equal,  it  will  work 
an  extinguishment  of  the  mortgage  as  to  the  interest  of  the 
one  paying,  but  an  assignment  for  the  purpose  of  enforcing 
contribution  from  the  others.]  But  if  a  stranger  volunteer  to 
pay  a  mortgage-debt  he  will  not  thereby  acquire  the  mort- 
gagee's rights  without  an  actual  assignment  of  the  mortgage. 
Nor  would  he,  though  he  paid  the  money  at  the  request  of  the 
mortgagor,  and  under  a  verbal  agreement  that  he  might  have 
the  benefit  of  the  mortgage  as  security.  And  where,  as  an 
inducement  to  a  third  party  to  pay  the  money  due  upon  a 
mortgage,  the  mortgagor  gave  him  a  note  for  a  certain  sum  as 
a  bonus,  and  secured  it  by  a  mortgage  upon  the  same  land,  it 
was  held,  that  by  makmg  such  payment  he  did  not  become 
equitable  assignee  of  the  mortgage.^ 

§  1064,  Effect  of  Mortgagee's  Purchase  of  Equity  of  Redemp- 
tion. —  Whatever  view  be  taken  of  the  respective  interests  of 
mortgagor  and  mortgagee,  the  two  together  comprise  one 
estate.  By  the  doctrine  of  merger,  if  a  mortgagee  purchase 
the  equity  of  redemption  his  estate  as  mortgagee  merges  in 

1  Hinds  V.  Ballou,  44  N.  H.  619  :  Hubbell  v.  Blakeslee,  71  N.  Y.  68  ;  Champ- 
ney  v.  Coope,  32  N.  Y.  543 ;  Hutchins  v.  Hibbard,  34  N.  Y.  24  ;  Kellogg  v. 
Ames,  41  N.  Y.  259  ;  Brown  v.  Lapham,  3  Cush.  551 ;  Eaton  v.  Simonds,  14  Pick. 
98  ;  Robinson  v.  Urquhart,  12  N.  J.  Eq.  515  ;  Swift  v.  Kraemer,  13  Cal.  526  ; 
Wedge  V.  Moore,  6  Cush.  8 ;  Bolton  v.  Ballard,  13  Mass.  227  ;  Kilborn  v.  Robbins, 
8  Allen,  471  ;  Ingham  r.  Weed  (Cal.),  48  Pac.  Rep.  318  ;  Mansfield  v.  Dyer,  133 
Mass.  374.  But  semhle  aliter  if  he  is  the  one  originally  bound  for  the  payment ; 
and  it  will  be  a  discharge,  at  least  if  any  rights  of  any  other  party  in  interest 
are  prejudiced.     Wadsworth  v.  Williams,  100  Mass.  126. 

2  See/josi-,  §§  1140,  1141. 

8  Downei-  v.  Wilson,  33  Vt.  1. 


OF  THE   mortgagee's   INTEREST.  115 

that  of  the  mortgagor.^  But  merger  does  not  take  place, 
and  the  mortgagee  acquiring  the  equity  of  redemption  will  be 
allowed  to  keep  his  mortgage  alive  as  a  separate  and  distinct 
interest  or  estate,  whenever  it  is  to  his  interest  tliat  this  should 
be  done  in  order  to  protect  himself  to  the  extent  of  his  mort- 
gage against  subsequent  incumbrancers,  or  other  persons  who 
stand  to  him,  as  mortgagee,  in  the  light  of  redemptioncrs. 
This  principle  is  analogous  to  that  of  equitable  assignment, 
worked  by  payment  of  the  debt,  and  is  also  discussed  at  length 
in  treating  of  the  interest  of  the  mortgagor.^ 

§  1065.  Of  Mortgagee's  Remedy  for  Waste.  —  As  "  between 
the  mortgagor  and  mortgagee,  the  mortgage  is  to  be  regarded 
as  a  conveyance  in  fee,  because  that  construction  best  secures 
him  [the  mortgagee]  in  his  remedy,  and  his  ultimate  right  to 
the  estate  and  to  its  incidents,  the  rents  and  profits.  But  in 
all  other  respects,  until  foreclosure,  when  the  mortgagee  be- 
comes the  absolute  owner,  the  mortgage  is  deemed  to  be  a  lien 
or  charge,  subject  to  which  the  estate  may  be  conveyed,  attached, 
and  in  other  respects  dealt  with  as  the  estate  of  the  mortgagor."  ^ 
It  has  accordingly  been  held,  that  a  mortgagee  of  a  reversion, 
subject  to  a  widow's  right  of  dower,  upon  entering  for  condi- 
tion broken  may  have  waste  against  the  tenant  for  life  for 
acts  of  waste  done  before  the  breach  of  the  condition  of  the 
mortgage,  even  if  done  by  a  mere  trespasser,  *  while  a  mort- 
gagee in  possession  can  only  be  reached  in  equity  for  acts  of 
waste  or  trespass  done  by  him  upon  the  premises,  unless  he 
has  restricted  his  power  by  some  covenant.^  But  equity  in 
such  cases  holds  the  mortgagee  to  a  strict  account  for  using 
the  premises  in  a  way  inconsistent  with  the  legitimate  purposes 
of  security.^     And  if  after  a  judgment  for   redemption,  and 

1  See  post,  §  1122.  2  gee  pod,  §  1113. 

3  Ewer  V.  Hobbs,  5  Jlet.  3  ;  Porter  i;.  Green,  4  Iowa,  576  ;  Kennett  v.  Pluin- 
mer,  28  Mo.  142;  Savage  v.  Dooley,  2S  Conn.  411  ;  Mills  v.  Shepard,  30  Conn. 
98  ;  Munson  v.  Munson,  id.  425,  437  ;  Wilkinson  v.  Flowers,  37  Miss.  579,  585  ; 
Tripe  v.  Marc3',  39  N.  H.  439  ;  Den  v.  Dimon,  10  N.  J.  157  ;  Adams  v.  Corriston, 
7  Minn.  456  ;  Brown  v.  Snell,  6  Fla.  744. 

*  Fay  V.  Brewer,  3  Pick.  203. 

6  Furbusli  V.  Goodwin,  29  N.  H.  321  ;  Chellis  v.  Stearns,  22  N.  H.  312  ;  Smith 
V.  Johns,  3  Gray,  517;  Taylor  v.  Townsend,  8  Mass.  411;  Irwin  v.  David.son, 
3  Ired.  Eq.  311 ;  Evans  v.  Thomas,  Cro.  Jac.  172. 

6  Shaeffer  v.  Chambers,  6  N.  J.  Eq.  548  ;  Givens  v.  McCalmont,  4  Watts,  460. 


116  MORTGAGES. 

before  possession  under  it  has  actually  been  delivered  to  the 
mortgagor,  the  mortgagee  does  acts  injurious  to  the  inherit- 
ance, the  mortgagor,  when  he  shall  have  regained  possession, 
may  have  an  action  in  the  nature  of  waste  for  such  injury.^ 

§  1066.  Of  Moitgagee's  Remedy  for  Waste,  continued. — And 
although  a  mortgagee  may  not  have  a  technical  action  of 
waste  against  the  mortgagor  in  any  case,  he  may  have  trespass 
quare  clausum  for  any  act  done  by  him  or  by  his  authority, 
essentially  impairing  the  inheritance,  such  as  cutting  timber, 
tearing  down  houses,  fixtures,  and  the  like,^  although  such 
fixtures  may  have  been  placed  upon  the  premises  by  the  mort- 
gagor after  the  making  of  the  mortgage.^  So  the  mortgagee 
may  have  trespass  against  one  who,  by  consent  of  the  mort- 
gagor, removes  a  house  standing  upon  the  mortgaged  prem- 
ises,* though  trespass  will  not  lie  against  a  mortgagor  or  his 
tenant  for  any  acts  of  occupation  done  by  either  before  entry 
made  by  the  mortgagee,  though  after  condition  broken.^  A 
mortgagee  not  in  possession,  or  having  a  right  to  possession, 
cannot  have  trespass  against  a  third  party  for  entering  upon 
the  premises  and  cutting  and  removing  the  crops  growing 
thereon.^  But  if  he  be  in  possession  he  may  have  trespass 
against  a  stranger  for  entering  upon  the  premises."  A  third 
mortgagee  not  in  possession,  though  he  may  not  have  trespass 
qu.  cL  against  a  stranger  for  entering  upon  the  premises,  may 
have  an  action  of   tort  against  one  for  entering  and  tearing 

1  Taylor  v.  Townsend,  8  Mass.  411. 

2  Stowell  V.  Pike,  2  Me.  387  ;  Smith  v.  Moore,  11  N.  H.  55;  Bussey  v.  Paige, 
14  Me.  132;  Sanders  v.  Reed,  12  N.  H.  558;  Smith  v.  Goodwin,  2  Me.  173; 
Frothingham  v.  McKusick,  24  Me.  403  ;  Pettingill  v.  Evaus,  5  N.  H.  54 ;  Page 
V.  Robinson,  10  Cush.  99 ;  Hagar  v.  Brainerd,  44  Vt.  294. 

3  Burnside  v.  Twitchell,  43  N.  H.  390. 

*  Cole  V.  Stewart,  11  Cush.  181  ;  Wilmarth  v.  Bancroft,  10  Allen,  348. 

6  Maj'o  V.  Fletcher,  14  Pick.  525.  For  what  a  mortgagor  may  do  on  the 
premises,  see  Hoskin  v.   Woodward,  45  Penn.  St.  42. 

6  Gooding  v.  Shea,  103  Mass.  360  ;  Woodward  v.  Pickett,  8  Gray,  617;  W^ood- 
man  v.  Francis,  14  Allen,  198.  And  entry  and  record  thereof,  though  without 
continued  possession,  suffice  for  trespass  as  for  foreclosure.  Thompson  v.  Vinton, 
121  Mass.  139. 

"  Sparhawk  v.  Bagg,  16  Gray,  583.  And  in  New  Hampshire  such  an  action 
lies  by  relation,  after  entry  by  the  mortgagee,  for  injuries  to  the  freehold  by  the 
mortgagor  or  a  stranger  before  such  entry.  Pettingill  v.  Evans,  5  N.  H.  54 ; 
Bellows  V.  B.,  C.  &  M.  R.  R.,  59  N.  H.  491. 


OF   THE  mortgagee's   INTEREST.  117 

down  buildings  or  fixtures  upon  the  premises ;  nor  could  it  be 
set  up  in  defence  that  the  mortgagor  may  sue  for  the  same. 
His  right  would  be  subordinate  to  that  of  the  mortgagee.  Nor 
could  it  be  set  up  that  the  prior  mortgagees  have  a  right  to 
claim  damages  for  the  same,  if  they  have  done  nothing  to 
assert  such  a  claim.^  Nor  will  assumpsit  lie  for  rent  in  such  a 
case.2  In  Pennsylvania,  a  writ  of  estrepement  to  stay  waste 
by  a  mortgagor  is  provided  by  statute.^  In  Vermont,  a  mort- 
gagee, after  condition  broken,  may  have  an  action  on  the  case, 
in  the  nature  of  waste  against  the  mortgagor  in  possession,  for 
cutting  timber  and  selling  it ;  or  he  may  have  trover  for  the 
timber.*  So  in  Maine,  Massachusetts,  and  New  Hampshire, 
the  property  in  such  timber  is  in  the  mortgagee,  who  may  have 
trover  for  the  same,^  even  against  an  innocent  purchaser  from 
the  mortgagor.^  And  in  Rhode  Island  the  mortgagee  may 
have  replevin  against  mortgagor  in  possession  for  wood  or 
timber  so  cut  upon  the  premises  as  to  waste  the  same.'^  In 
New  York,  a  mortgagee  may  have  an  action  on  the  case 
against  the  mortgagor  for  an  injury  to  the  mortgage  security.^ 
§  1067.  Injunction  to  stay  Waste.  —  The  most  general  and 
effectual  remedy  for  a  mortgagee  against  a  mortgagor  to  pro- 
tect the  premises  is  by  bringing  in  equity  a  bill  for  an  injunc- 
tion to  stay  waste ;  or,  according  to  the  rule  in  Arkansas,  to 
have  the  property  placed  in  the  hands  of  a  receiver,^  and  this 
remedy  may  be  obtained  by  any  one  who  is  collaterally  liable 

1  Gooding  v.  Shea,  supra  ;  Cole  v.  Stewart,  11  Cush.  181. 

2  Mayo  V.  Fletcher.  14  Pick.  525. 

8  Purdon,  Dig.  (8th  ed.)  336,  §§  3,  6. 

*  Langdon  v.  Paul,  22  Vt.  205. 

6  Gore  V.  Jenness,  19  Me.  53;  Biissey  v.  Page,  14  Me.  132;  Searle  v.  Sawyer, 
127  Mass.  491.  But  no  action  lies  against  a  mortgagor  for  such  appropriation  of 
crops,  firewood,  etc.,  as  is  suitable  to  his  possessiou.  Ibid.  ;  Porter  v.  Hubbard,  134 
Mass.  233,  237.  That  trover  will  not  lie  in  Connecticut  and  New  York,  see 
Cooper  V.  Davis,  15  Conn.  556  ;  Peterson  v.  Clark,  15  Johns.  205  ;  but  will  in 
England,  Hitchman  i;.  Walton,  4  M.  &  W.  409  ;  Holland  v.  Hodgson,  L.  R. 
7  C.  P.  328. 

6  Howe  V.  Wadsworth,  59  N.  H.  397. 

'  Waterman  v.  Matteson,  4  R.  I.  539.     But  not  trespass.     Ibid. 

8  Van  Pelt  v.  McGraw,  4  N.  Y.  110  ;  Lane  v.  Hitchcock,  14  Johns.  213  ;  Card- 
ner  v.  Heartt,  3  Denio,  232.  So  New  Jersey.  Jackson  v.  Turrell,  39  N.  J. 
329. 

9  Mooney  v,  Briukley,  19  Ark.  340  ;  Morrison  v.  Buckner,  1  Ilenipst.  442. 


118  MORTGAGES. 

for  the  mortgage  debt.^  But  in  those  jurisdictions  which  have 
adopted  the  Hen  theory,  the  right  to  stay  waste  by  removing  a 
building,  for  instance,  depends  upon  whether  the  threatened 
act  will  render  the  premises  inadequate  security  for  the  debt.^ 
The  mortgagee's  right  is  a  lien  and  not  an  estate ;  and  where 
the  mortgagor,  after  making  his  mortgage,  erected  a  house 
upon  the  premises,  and  then  sold  it  to  a  third  party,  who 
removed  it,  tbe  mortgagee  was  held  to  be  without  remedy.^ 

§  1068.  Of  Leases  and  Emblements.  —  If  the  mortgagor  lease 
the  premises  subject  to  the  mortgage,  and  the  mortgagee 
recognize  the  tenant  as  such,  he  makes  him  his  own  tenant 
so  far  that  he  cannot  treat  him  as  a  trespasser.*  But  the 
mortgagee  may  disavow  the  mortgagor's  lease  and  take  pos- 
session and  evict  the  tenant,  who  will  not  be  entitled  to 
emblements,  inasmuch  as  the  mortgagee  is  considered  as 
entering  under  a  paramount  title.^  So  if  the  mortgagor 
himself  be  expelled  by  the  mortgagee,  he  cannot  claim  em- 
blements, though  it  was  done  without  notice.^  Where  a 
mortgagee  entered,  after  condition  broken,  upon  premises 
which  had  been  let  by  the  mortgagor  before  making  the  mort- 

1  Cooper  V.  Davis,  15  Conn.  556  ;  Brady  v.  Waldron,  2  Johns.  Ch.  148  ;  Cap- 
ner  v.  Flemiiigton  Mg.  Co.,  3  N.  J.  Eq.  467  ;  Salmon  v.  Clagett,  3  Bland,  125  ; 
Murdock's  Case,  2  Bland,  461  ;  Scott  v.  Wharton,  2  Hen.  &  M.  25;  Brick  v. 
Getsiuger,  5  N.  J.  Eq.  391;  Gray  v.  Baldwin,  8  Blackf.  164  ;  Eden  on  Injunctions, 
205 ;  Hampton  v.  Hodges,  8  Ves.  105  ;  Usborne  v.  Usborne,  1  Dick.  75  ;  Robinson 
V.  Litton,  3  Atk.  209  ;  Farrant  v.  Lovel,  id.  723;  Parsons  v.  Hughes,  12  Md.  1; 
Bunker  v.  Locke,  15  Wis.  635;  Ensign  v.  Colburn,  11  Paige,  503;  Johnson  v. 
White,  11  Barb.  194  ;  Guernsey  v.  Wilson,  134  Mass.  482.  See  Cortelyeu  v.  Hatha- 
way, 11  N.  J.  Eq.  39,  40,  as  to  when  a  receiver  will  be  appointed,  and  what  will 
be  his  power. 

2  Robinson  v.  Russell,  24  Cal.  467;  Buckout  v.  Swift,  27  Cal.  433;  Brady  r. 
Waldron,  2  Johns.  Ch.  148  ;  Story,  Eq.  Jur.  §  915. 

3  Chick  V.  Willetts,  2  Kan.  384  ;  Clark  v.  Reyburn,  1  Kan.  281 ;  Burhans  v. 
Hutcheson,  25  Kan.  625. 

*  Tud.  Cas.  11  ;  Doe  w.  Hales,  7  Bing.  322.  And  the  tenant  can  thereafter  resist 
paying  rent  to  the  mortgagor.  Pope  v.  Biggs,  9  B.  &  C.  245  ;  Smith  v.  Shepherd, 
15  Pick.  147  ;  Stone  v.  Patterson,  19  Pick.  476;  Welch  v.  Adams,  1  Met.  494; 
Cook  V.  Johnson,  121  Mass.  326;  Lucier  v.  Marsales,  133  Mass.  454. 

5  Coote,  Mortg.  332,  333  ;  Mayo  v.  Fletcher,  14  Pick.  525  ;  Lynde  v.  Rowe, 
12  Allen,  101,  citing  the  text.     Contra,  Lane  v.  King,  8  Wend.  584. 

6  Jones  V.  Thomas,  8  Blackf.  428 ;  M'Call  v.  Lenox,  9  S.  &  R.  302  ;  Doe  v. 
Mace,  7  Blackf.  2.  In  Connecticut,  whatever  is  severed  from  the  freehold  by  the 
mortgagor,  including  emblements,  becomes  his  own.  Toby  v.  Reed,  9  Conn.  216  ; 
Cooper  I'.  Davis,  15  Conn.  556. 


OP   THE   mortgagee's   INTEREST.  119 

guge,  it  was  held  that  he  might  compel  the  lessee  to  pay  him 
all  subsequently  accruing  rent,  as  well  as  rent  then  due  which 
had  accrued  subsequent  to  the  making  of  the  mortgage,  al- 
though his  entry  might  not  be  sufficiently  formal  to  work  a 
foreclosure.^  So  if  a  termor  underlet  and  then  mortgage  his 
term,  it  operates  as  an  assignment  to  the  mortgagee  of  the 
rent  accruing  due  from  such  sublessee,  after  the  making  of 
the  mortgage.'-^  But  this  does  not  extend  to  rent  due  when 
the  mortgage  was  made.^  The  mortgagee,  in  such  cases,  is 
regarded  as  assignee  of  the  reversion.^  It  is  not  competent, 
however,  for  a  mortgagee,  who  takes  his  mortgage  subsequent 
to  a  lease  by  the  mortgagor,  to  disturb  the  lessee's  possession 
any  more  than  the  mortgagor  himself  could  have  done.  And 
though  he  may  compel  the  tenant  to  pay  him  rent,  it  is  only 
such  as  falls  due  after  his  mortgage  is  made,  and  has  not 
been  paid  to  the  mortgagor  before  notice  of  the  mortgage, 
and  the  mortgagee's  claim  to  have  it  paid  to  him.^  And  this 
extends  to  rents  paid  in  advance,  if  the  payment  is  made  in 
good  faith.  ^ 

§  1069.  Of  Recovery  of  Rent  by  Mortgagee.  —  At  common 
law  the  mortgagee  cannot  recover  rent  of  the  mortgagor  for 
the  time  he  suffers  him  to  retain  possession  of  the  premises, ^ 
unless  the  mortgagor  take  a  lease,  which  he  may  do,  from  the 
mortgagee,  under  which  he  can  hold  possession  against  the 
mortgagee.^  Nor  can  a  mortgagee,  in  Massachusetts,  recover 
mesne  profits  of  a  mortgagor,  after  a  judgment  for  possession, 

1  Kimball  v.  Lockwood,  6  R.  I.  139. 

2  Russell  V.  Allen,  2  Allen,  42  ;  Mirick  v.  Hoppin,  118  Mass.  582. 
8  Burden  v.  Thayer,  3  Met.  76. 

*  Moss  V.  Gallimore,  Doug.  279  ;  Mass.  Hosp.  L.  I.  Co.  i;.  Wilson,  10  Met.  126  ; 
Baldwin  v.  Walker,  21  Conn.  168  ;  Babcock  v.  Kenned}',  1  Vt.  457  ;  Cokeru.  Pear- 
sail,  6  Ala.  542  ;  Smith  v.  Taylor,  9  Ala.  633  ;  1  Smith,  Lead.  Cas.  {2d  Am.  ed.) 
310;  McKircher  v.  Hawley,  16  Johns.  289;  Demarest  v.  Willard,  8  Cow.  206; 
Fitchburg  Co.  v.  Melvin,  15  Mass.  268;  Castleman  v.  Belt,  2  B.  Mon.  157;  Mirick 
I'.  Hoppin,  118  Mass.  582. 

6  See  cases  above ;  Myers  v.  White,  1  Ravvle,  353  ;  Weidner  v.  Foster, 
2  Penn.  23. 

6  Henshaw  v.  Wells,  9  Humph.  568.  But  a  note  is  not  such  payment.  Aldridge 
V.  Ribyre,  54  Ind.  182. 

T  Teal  V.  Walker,  111  U.  S.  242 ;  Walker  v.  King,  44  Vt.  601  ;  ante,  §  1044. 

8  Morton  v.  Woods,  9  B.  &  S.  632  ;  Jolly  v.  Arbuthnot,  4  De  G.  &  J.  224  ; 
Kunkle  v.  Wolfersberger,  6  Watts,  126. 


120  MORTGAGES. 

for  the  time  anterior  to  the  recovery  of  his  judgment.^  But 
if,  having  a  judgment  for  possession  upon  his  mortgage,  the 
mortgagee  sue  a  writ  of  entry  at  common  law,  he  may  recover 
judgment  for  mesne  profits  from  the  time  of  rendition  of  the 
prior  judgment.^  But  where  the  mortgage  is  prior  to  the 
lease,  and  the  mortgagee  gives  the  lessee  notice  to  pay  him 
the  rent,  and  then  recovers  judgment  for  possession  in  eject- 
ment, he  may  recover  the  mesne  profits  accruing  after  such 
notice.^  So,  if  land  is  leased  while  under  a  mortgage,  the 
lessee  may  become  liable  to  the  mortgagee  for  rent  accruing 
due  after  entry  made,  or  some  equivalent  act  done  by  the 
mortgagee;  but  he  is  not  liable  before  such  entry,  nor  for 
rent  due  before  it  was  made.  The  lessee,  as  to  such  rents, 
stands  in  the  place  of  the  mortgagor,  and  is  liable  to  him.^ 
And  the  law  on  the  subject  may  be  stated  thus :  If  the  mort- 
gage is  prior  to  the  lease,  there  is  no  privity  between  the 
mortgagee  and  lessee;  the  lessee  stands  in  the  place  of  the 
mortgagor,  and  he  would  not  be  liable  for  rent  until  the  mort- 
gagee shall  have  taken  possession  of  the  premises.^  Whether 
a  demand  and  notice  to  pay  rent  shall  be  equivalent  to  mak- 
ing an  entry  is  treated  by  the  Massachusetts  court  as  ques- 
tionable,*' though  in  the  above  case  from  Virginia  it  seems  to 
have  been  held  sufficient.  But  if  the  mortgagor  or  his  ten- 
ant, under  a  lease  made  subsequent  to  the  mortgage,  refuse 
to  yield  possession,  or  pay  rent  if  demanded,  after  the  mort- 

1  Coote,  Mortg.  332  ;  Wilder  v.  Houghton,  1  Pick.  87  ;  Mayo  v.  Fletcher,  14 
Pick.  525. 

2  Haven  v.  Adams,  8  Allen,  363. 

8  Bk.  of  Washington  v.  Hupp,  10  Gratt.  23. 

*  Morse  v.  Goddard,  13  Met.  177  ;  Mass.  Hosp.  L.  I.  Co.  v.  Wilson,  10  Met. 
126  ;  Mayo  v.  Fletcher,  14  Pick.  525  ;  Watts  v.  Coffin,  11  Johns.  495 ;  McKircher 
V.  Hawley,  16  Johns.  289;  Peters  v.  Elkins,  14  Ohio,  344  ;  Pope  v.  Biggs,  9  B. 
&  C.  245 ;  Kimball  v.  Lockwood,  6  R.  I.  138  ;  Syracuse  Bk.  v.  Tallman,  31  Barb. 
201. 

s  Russell  V.  Allen,  2  Allen,  44,  citing  the  text ;  Morse  v.  Goddard,  13  Met.  177, 
180  ;  Smith  v.  Shepard,  15  Pick.  147  ;  Kimball  v.  Lockwood,  6  R.  I.  138  ;  Syracuse 
Bk.  V.  Tallman,  31  Barb.  207;  Adams  v.  Bigelow,  128  Mass.  365  ;  Mass.  Hosp. 
L.  I.  Co.  V.  Wilson,  10  Met.  126.  See  note  to  Trent  v.  Hunt,  9  Exch.  14,  24, 
Am.  ed.,  for  cases  collected. 

6  Field  V.  Swan,  10  Met.  112.  In  Evans  v.  Elliot,  9  Ad.  &  E.  342,  it  is  held 
that  mere  notice  and  demand  of  rent  is  not  sufficient  to  entitle  the  mortgagee  to 
hold  the  mortgagor's  lessee  as  his  tenant. 


OP  THE  mortgagee's   INTEREST.  121 

gagee's  entry  for  condition  broken,  he  may  recover  the  mesne 
prolits  in  a  proper  form  of  action  for  that  purpose.^ 

§  1070.  Recovery  of  Rent  by  Mortgagee,  continued.  — In  the 
case  above  supposed  of  a  lease  made  after  the  making  of  a 
mortgage,  if  the  lessee  upon  the  mortgagee's  making  an  entry 
for  condition  broken,  or  some  act  equivalent  thereto,  pay  rent 
to  the  mortgagee,  it  creates  the  relation  of  landlord  and  ten- 
ant between  them.^  But  if  the  lessee  refuse  to  recognize  that 
relation,  and  will  not  pay  rent  to  the  mortgagee,  the  only 
remedy  of  the  latter  is  by  an  action  of  ejectment.^  From 
what  has  been  said,  it  must  be  obvious  that  no  lease  that  will 
be  indefeasible  can  be  made  of  an  estate  which  has  been  pre- 
viously mortgaged,  unless  the  mortgagor  and  mortgagee  both 
join,  or  at  least  concur,  in  its  execution.  If  made  by  the 
mortgagor  alone,  the  mortgagee  may  enter  and  defeat  it.  If 
made  by  the  mortgagee  alone,  a  redemption  of  the  estate  by 
the  mortgagor  will  defeat  the  mortgagee's  lease.  And  in 
such  a  case,  if  the  mortgagee  intend  to  avail  himself  of  the 
rent,  he  must  have  the  covenant  for  its  payment  made  to  him. 
If  it  is  made  to  the  mortgagor,  the  mortgagee  cannot  sue  upon 
it.*  A  mortgagee  may  take  a  lease  from  the  mortgagor,  and 
covenant  to  pay  him  rent  until  condition  broken ;  and  if  he 
do,  he  will  be  bound  by  his  covenant,  and  not  be  admitted  to 
set  up  his  mortgage  against  the  lease.  But  if,  being  in  pos- 
session as  lessee,  he  take  a  mortgage  of  the  premises,  he  may 
elect  whether  to  hold  under  his  lease  or  his  mortgage.^  But 
under  the  system  of  New  York,  where  a  lessor  mortgaged  his 
estate  to  a  third  person,  and  then,  before  the  mortgage-debt 
fell  due,  assigned  the  rent  for  a  series  of  years,  of  which  the 
mortgagee  had  notice,  it  was  held,  in  an  action  to  foreclose 
the  mortgage,  that  the  assignee  of  the  rent  might  claim  it 

1  Northampton  Mills  v.  Ames,  8  Met.  1  ;  Hill  v.  Jordan,  30  Me.  367  ;  Turner 
V.  Cameron,  5  Exch.  932 ;  Litchfield  v.  Ready,  id.  939. 

2  Doe  V.  Barton,  11  Ad.  &  E.  307,  31.5  ;  Coote,  Mortg.  317. 
8  Partington  v.  Woodcock,  6  Ad.  &  E.  690. 

4  Hungerford  v.  Clay,  9  Mod.  1  ;  Willard  v.  Harvey,  5  N.  H.  252  ;  1  Smith's 
Lead.  Cas.  (5th  Am.  ed.)  697.  Mr.  Coventry,  in  a  note  to  Powell,  Mortg.  177, 
points  out  the  form  which  parties  should  adopt  in  such  cases  to  secure  the  rights 
of  mortgagor  and  mortgagee. 

6  Newall  V.  Wright,  3  Mass.  138  ;  Wood  v.  Felton,  9  Pick.  171  ;  Johnson  i;. 
Muzzy,  42  Vt.  708 ;  Shields  v.  Lozear,  34  N.  J.  496. 


122  MORTGAGES. 

between  the  time  when  the  mortgage-debt  fell  due  and  the 
appointment  of  a  receiver  in  the  suit  for  foreclosure,  although 
the  mortgagor  was  insolvent,  and  the  mortgaged  premises 
were  an  inadequate  security  for  the  mortgage-debt.^ 

§  1071.  Mortgagee's  Interest  not  subject  to  Dower  or  Debts.  — • 
Before  foreclosure,  the  wife  of  a  mortgagee  cannot  claim 
dower  in  the  mortgaged  premises,^  nor  is  his  estate  liable  to 
be  levied  upon  for  his  debts,  even  though  the  condition  may 
have  been  broken.  ^ 

§  1072.  Of  Devises  affecting  Mortgages.  —  How  far  a  devise 
of  lands,  tenements,  and  hereditaments  will  pass  mortgages, 
has  been  differently  held  by  different  courts.  The  following 
authorities  sustain  what  seems  to  be  the  better  doctrine,  that 
it  will  pass  mortgages  held  by  the  devisor,  unless  a  contrary 
intention  can  be  collected  from  the  language  of  the  will.*  So 
it  has  been  held  that  a  devise  of  one's  mortgages  will  pass  the 
lands  mortgaged,  though  a  devise  of  securities  for  money  will 
or  will  not  pass  mortgaged  estates  according  to  the  language 
and  intent  of  the  testator.^  And  it  seems  to  be  well  settled, 
that  if  a  testator,  after  making  his  will  devising  his  lands, 
etc.,  forecloses  a  mortgage  which  he  held  at  the  making  of 
his  will,  it  will  so  far  change  the  nature  of  his  interest  in  the 

1  Syracuse  Bk.  v.  Tallman,  31  Barb.  201  ;  Zeiter  v.  Bowman,  6  Barb.  133. 

2  Powell,  Mortg.  7,  n.  D. 

8  Blanchard  v.  Colburn,  16  Mass.  345  ;  Eaton  v.  Whiting,  3  Pick.  484  ;  Hunter 
V.  Hunter,  Walk.  (Miss.)  194;  Huntington  v.  Smith,  4  Conn.  235;  Smith  v. 
People's  Bk.,  24  Me.  185  ;  Rickert  v.  Madeira,  1  Rawle,  325 ;  Jackson  v.  Willard, 
4  Johns.  41 ;  Trapnall  v.  State  Bk.,  18  Ark.  53 ;  Runyan  v.  Mersereau,  11  Johns. 
534  ;  Glass  v.  Ellison,  9  N.  H.  69;  Buck  v.  Sanders,  1  Dana,  187  ;  Whiting  y. 
Beebe,  7  Eng.  (Ark.)  421,  581  ;  Pettit  v.  Johnson,  15  Ark.  55  ;  Hill  v.  West, 
8  Ohio,  222  ;  McGan  v.  Marshall,  7  Humph.  121 ;  Thornton  v.  Wood,  42  Me.  282  ; 
Marsh  v.  Austin,  1  Allen,  235  ;  Symes  v.  Hill,  Quincy,  318  ;  Brown  v.  Bates, 
55  Me.  520.  But  formerly  held  othervs'ise  in  Massachusetts.  Hooton  v.  Grout, 
Quincy,  343. 

*  Byth.  Jarm.  Conv.  634,  n. ;  Jackson  v.  De  Lancey,  13  Johns.  537,  553-559  ; 
Galliers  v.  Moss,  9  B.  &  C.  267  ;  Co.  Lit.  205  a,  note  96  ;  Braybroke  v.  Inskip, 
8  Ves.  417,  n.  But  in  the  following  cases  the  courts  held,  that  a  general  devise  of 
lands  would  not  pass  the  devisor's  mortgages.  Atty.-Gen.  v.  Vigor,  8  Ves.  256, 
276  ;  Casborne  v.  Scarfe,  1  Atk.  605  ;  Winn  v.  Littleton,  1  Vern.  3 ;  Strode  v. 
Russell,  2  Vern.  625.     Wilkins  v.  French,  20  Me.  Ill,  favors  the  same  idea. 

6  Winn  V.  Littleton,  1  Vern.  4,  Raithby  ed.  n.  ;  Crips  v.  Grysil,  Cro.  Car.  37  ; 
2  Crabb,  Real  Prop.  882  ;  Galliers  v.  Moss,  9  B.  &  C.  267  ;  Powell,  Mortg.  267, 
note,  that  such  a  devise  does  in  equity  pass  the  mortgage. 


OF  THE   mortgagee's   INTEREST.  123 

premises,  as  to  place  them  in  the  category  of  after-acquired 
real  estate,  which,  at  common  law  indeed,  would  not  pass  by 
such  a  will.  To  work  this  change  there  must  be  an  actual 
foreclosure;  merely  entering  and  taking  possession  will  not 
have  that  effect.  The  foreclosure  becomes,  in  a  measure,  a 
new  purchase.^ 

§  1073.  Mortgages  go  to  Personal  Representatives.  —  At  com- 
mon law,  if  the  mortgagee  dies,  his  legal  estate  in  the  mort- 
gaged premises  descends  to  his  heirs.  But  they  will  in 
equity  be  held  as  trustees  for  the  executor  or  administrator 
of  the  mortgagee,  since  the  debt  thereby  secured  goes  into  the 
executor's  hands  as  personal  assets.  Equity,  however,  gives 
the  same  direction  to  the  mortgage  as  to  the  debt,  and  both 
go  to  the  executor, 2  and  an  heir  cannot  release  a  mortgage. ^ 
So  where  the  heirs  of  a  mortgagee  conveyed  the  premises 
before  the  mortgage  was  foreclosed,  it  was  held  not  to  oper- 
ate as  an  assignment  of  the  mortgage,  whereas  a  quitclaim 
by  the  administrator  of  the  mortgagee  would  be  an  assignment 
of  the  mortgage.  And  an  executor  or  administrator  may 
assign  a  mortgage.*  And  this  is  adopted  as  the  statute  rule 
in  many  of  the  States,"  where,  accordingly,  the  executor  or 
administrator  of  the  mortgagee  may  recover  possession  of  the 
land,  and  hold  it  to  be  administered  and  accounted  for  as  per- 

1  Casborne  v.  Scarfe,  1  Atk.  606 ;  Brigham  v.  Winchester,  1  Met.  390  ;  Strode 
V.  Russell,  2  Vern.  625;  Ballard  v.  Carter,  5  Pick.  112;  Fay  v.  Cheney,  14  Pick. 
399.  By  statute  now,  a  devise  will  pass  after-acquired  real  estate.  Mass.  Pub. 
Stat.  1881,  c.  127,  §  25.  But  if  devisor  sell  lands  which  he  has  devised  in  his  will, 
and  take  back  a  mortgage  for  the  purchase- money,  he  thereby  revokes  his  devise  ; 
the  mortgage  does  not  pass  by  the  will.     Beck  v.  McGillis,  9  Barb.  35. 

2  Demarest  v.  Wj-nkoop,  3  Johns.  Ch.  129,  145  ;  Jackson  v.  De  Lancey,  11 
Johns.  365  ;  s.  c.  13  Johns.  537  ;  Kinna  v.  Smith,  3  N.  J.  Eq.  14  ;  Barnes  v.  Lee, 
1  Bibb,  526  ;  1  Smith,  Lead.  Cas.  (5th  Am.  ed.)  669  ;  Co.  Lit.  205  a,  n.  96;  Smith 
V.  Dyer,  16  Mass.  18,  23  ;  Dewey  v.  Van  Deusen,  4  Pick.  19  ;  Wms.  Real  Prop. 
331 ;  Grace  v.  Hunt,  Cooke  (Tenn.),  341  ;  Winn  v.  Littleton,  1  "Vern.  4,  n.  ; 
Wilkins  v.  French,  20  Me.  Ill  ;  Chase  v.  Lockerman,  11  Gill  &  J.  185  ;  Dexter  v. 
Arnold,  1  Sumn.  109,  where  it  is  held  that  it  is  ordinarily  necessary  to  make  the 
heir  of  a  mortgagee  party  to  a  bill  to  redeem  the  mortgage,  though  held  otherwise 
in  Kinna  v.  Smith,  supra ;  White  v,  Rittenmyer,  30  Iowa,  268. 

3  Taft  V.  Stevens,  3  Gray,  504. 

4  Douglass  V.  Durin,  51  Me.  121  ;  Burt  v.  Kicker,  6  Allen,  77. 

s  Rhode  Island,  Gen.  Laws,  1896,  c.  214;  Maine,  Rev.  Stat.  1883,  c.  90,  §  11  ; 
Mich.  Howell's  Annot.  Stat.  188i2,  §  5880  ;  Vt.  Stat.  1894,  §  2464  ;  Ohio,  Rev. 
Stat.  1896,  §  6070 ;  Burton  v.  Hintrager,  18  Iowa,  348. 


124  MORTGAGES. 

sonal  assets.  And  tins  is  the  law  in  Massachusetts  also.^  It 
was  accordingly  held  that  an  entry  and  possession  taken  for 
purposes  of  foreclosure  by  the  heirs  of  the  mortgagee  had  no 
effect  to  bar  the  redemption  of  the  estate  by  the  mortgagor, 
though  held  for  eight  years.  It  was  held,  moreover,  that  by 
such  possession  the  heirs  were  disseisors  of  the  personal  rep- 
resentatives of  the  mortgagee,  and  accountable  to  them  for  the 
mesne  rents  and  profits.  And  an  administrator  having  been 
appointed  on  the  estate  of  the  mortgagee,  the  heirs  were  held 
accountable  to  him  for  the  rents  as  executors  in  their  own 
wrong,  and  he  would  be  obliged  to  allow  these  to  the  mort- 
gagor as  having  been  received  towards  the  mortgage-debt,  ^ 
And  so  far  has  this  doctrine  been  established,  that  where  the 
mortgagee  obtained  conditional  judgment  for  possession  in 
order  to  foreclose  the  mortgage,  and  a  stranger  entered  after 
his  death,  his  administrator,  it  was  held,  might  maintain  a 
writ  of  entry  against  the  stranger  as  a  disseisor.  ^  So  an  ad- 
ministrator of  a  mortgagee,  after  he  had  obtained  judgment 
for  foreclosure  and  possession  upon  a  mortgage  held  by  his 
intestate,  was  held  entitled  to  maintain  trespass  against  an 
heir  of  the  mortgagee  for  entering  upon  the  premises.^  In 
order  to  administer  lands  held  by  executors  and  administra- 
tors in  mortgage  at  common  law,  under  the  Revised  Statutes 
of  Massachusetts,  a  license  for  their  sale  had  to  be  first  ob- 
tained. But  now,  by  statute,  they  may  be  sold  and  adminis- 
tered before  foreclosure,  like  personal  estate.^  And  one  of 
two  executors  may  effectually  assign  a  mortgage.^  If,  there- 
fore, the  mortgagor  would  redeem  the  estate  after  the  death 
of  the  mortgagee,  the  money  is  to  be  paid  to  the  executor  or 
administrator,  and  not  to  the  heir."* 

*  Note. — This  doctrine,  that  a  mortgage  is  personal  assets,  and,  as  such, 
goes  to  the  executor,  has  been  sustained  since  the  time  of  Lord  Keeper  Finch, 
28  Charles  II.,  in  Thornbrough  v.  Baker,  1  Ch.  Cas.  283  ;  Fisk  v.  Fisk,  Free. 
Chan.  11  ;  Tabor  v.  Grover,  2  Vern.  367  ;  Casborne  v.  Scarfe,  1  Atk.  605. 

1  Smith  V.  Dyer,  16  Mass.  18  ;  Hathaway  v.  Valentine,  14  Mass.  501  ;  Pub.  Stat. 
1881,  c.  133,  §§  6-10  ;  Marsh  v.  Austin,  1  Allen,  235  ;  Steel  v.  Steel,  4  Allen,  417. 

2  Haskins  v.  Havvkes,  103  Mass.  379,  381. 
8  Richardson  v.  Hildreth,  8  Cush.  225. 

*  Palmer  r.  Stevens,  1]  Cush.  147. 

6  Blair,  Appellant,  13  Met.  126;  Pub.  Stat.  c.  133,  §  9. 

6  George  i'.  Baker,  3  Allen,  326,  u.  ^  2  Crabb,  Real  Prop,  830. 


OF   THE   mortgagee's   INTEREST.  125 

§  1074.  Of  Mortgages  for  Separate  Debts.  —  A  mortgage  is 
often  made  to  several  persons,  sometimes  to  secure  two  sepa- 
rate debts,  and  sometimes  to  secure  one  or  more  joint  debts 
due  to  the  mortgagees.  If  made  to  secure  separate  debts, 
the  interests  of  the  mortgagees  are  several,  and  not  joint, 
and  the  remedy  for  each  is  several.  But  the  amount  of  the 
respective  interests  in  the  mortgaged  property  is,  pro  rata, 
according  to  the  respective  amounts  of  their  debts.  ^  If  the 
debt  be  a  joint  one,  the  mortgagees  are  joint-tenants  of  the 
mortgage  estate,  with  the  right  of  survivorship,  even  in  States 
where,  by  statute,  a  joint  ownership  of  lands  creates  a  ten- 
ancy in  common.  And  a  release  by  one  of  the  mortgagees, 
in  such  a  case,  of  the  debt,  is  a  discharge  of  the  mortgage 
upon  the  land.'^  But  as  soon  as  the  mortgage  has  been  fore- 
closed, and  the  legal  estate  made  absolute,  it  is  converted 
into  a  tenancy  in  common  between  the  owners  thereof.^  As 
a  consequence  of  the  above  propositions,  if  one  of  two  joint- 
mortgagees  die  before  foreclosure  of  the  mortgage,  the  sur- 
vivor may  bring  an  action  to  foreclose  the  same.^  But  if  the 
debts  are  distinct,  the  survivor  of  the  mortgagees  cannot  sus- 
tain an  action  in  his  own  name  to  foreclose  the  mortgage  for 
the  debt  due  the  deceased.^  But  if  there  be  a  joint-mortgage 
made  to  two  to  secure  a  debt  due  to  one  of  them,  the  legal 
estate  vests  in  them  as  tenants  in  common,  the  one  having  no 
interest  in  the  mortgage-debt  being  a  trustee  of  the  estate  for 
the  benefit  of  him  who  owns  the  debt.^ 

§  1075.  Of  Separate  Mortgages  for  one  Debt.  —  If  two  sev- 
eral owners  of  distinct  parcels  mortgage  them  to  secure  a 
joint-debt,  it  prima  facie  charges  these  lands,  so  far  as  re- 

1  Burnett  v.  Pratt,  22  Pick.  556  ;  Donnels  v.  Edwards,  2  Pick.  617  ;  Gilson  v, 
Gilson,  2  Allen,  117,  citing  the  text  ;  Brown  v.  Bates,  55  Me.  520  ;  Adams  v. 
Robertson,  37  111.  45. 

2  Appleton  V.  Boyd,  7  Mass.  131  ;  "Webster  v.  Vandeventcr,  6  Gray,  428  ; 
Wright  V.  Ware,  58  Ga.   150. 

3  Goodwin  V.  Richardson,  11  Mass.  469;  Johnson  v.  Brown,  31  N.  H.  405; 
Deloney  v.  Hiitcheson,  2  Ptand.  183  ;  Randall  v.  Phillips,  3  Mason,  378;  Tyler  v. 
Taylor,  8  Barb.  585  ;  Rigden  v.  Vallier,  2  Ves.  Sen.  252,  258. 

4  Williams  r.  Hilton,  35  Me.  547  ;  Appleton  v.  Boyd,  7  Mass.  131. 

5  Burnett  v.  Pratt,  22  Pick.  556.  See  Cochran  v.  Goodell,  131  Mass.  464, 
466. 

6  Root  V.  Bancroft,  10  Met.  44. 


126  MORTGAGES. 

spects  the  mortgagors,  equally  each  for  a  moiety  of  the  debt, 
and  no  agreement  otherwise  between  the  mortgagors  will 
affect  a  subsequent  purchaser  without  notice.^ 

§  1076,  Order  of  Priority.  —  Successive  mortgages,  duly 
registered,  take  effect  and  avail  as  security  in  favor  of  the 
successive  holders,  according  to  their  priority  of  registration. 
This  is  but  carrying  out  the  doctrine  of  the  effect  of  notice  in 
equity,  the  registration  being  constructive  notice  to  all  per- 
sons affected  by  it.^  And  consistently  with  this  doctrine, 
such  registration  is  only  notice  of  the  amount  of  an  existing 
mortgage,  so  far  as  the  record  itself  shows  it.  Thus,  where 
the  mortgage  was  to  secure  the  sum  of  $3,000,  and  the  record 
was  $300,  it  was  held  to  be  notice,  or  to  give  precedence,  only 
for  $300.^  But  where,  as  in  Alabama  and  other  States,  the 
record  takes  effect  from  filing,  the  subsequent  omission  of 
the  register  to  record  one  of  two  sums  covered  by  the  mort- 
gage was  held  not  to  impair  the  mortgagee's  security  for  both 
sums.^  Where,  as  in  Minnesota,  the  law  requires  two  wit- 
nesses to  a  mortgage-deed  to  give  it  validity,  and  the  recorder 
omitted  the  name  of  one  of  them  in  recording  a  mortgage- 
deed,  it  was  held  to  be  no  notice  to  others  of  such  a  mort- 
gage, because,  as  appeared  by  the  record,  the  deed  was  of  no 
validity,  and  a  subsequent  deed  duly  recorded,  taken  by  one 
not  having  actual  notice  of  the  prior  deed,  took  precedence 
of  such  prior  deed,  though  in  fact  it  had  been  properly  exe- 
cuted.^ But  where  two  mortgages  are  made  in  pursuance  of 
the  same  contract  or  transaction  to  two  parties,  neither  will 
gain  any  precedence  of  the  other  by  any  priority  of  record  of 
his  deed.  Their  equities  would  still  be  equal. ^  A  purchase- 
money  mortgage,  given  at  the  time  of  purchase,  has  priority 

1  Hoyt  V.  Dought)',  4  Sandf.  462. 

2  Coote,  Mortg.  384,  note,  Am.  cases;  Grant  v.  Bissett,  1  Caines,  Cas.  112; 
Doe  V.  Cleveland  Bk.,  3  McLean,  140.     Cf.  Hodge  v.  Amerman,  40  N.  J.  Eq.  99. 

8  Frost  I).  Beekrnan,  1  Johns.  Ch.  288  ;  s.  c.  18  Johns.  544.  But  where  the 
mortgage  was  for  $15,000,  but  the  recital  in  the  conveyance  of  the  equity  said, 
"  if  there  is  anything  due  and  unpaid  thereon,"  the  purchaser  might  show  the 
mortgage  fraudulently  altered,     Bennett  v.  Bates,  26  Hun,  364. 

4  Mims  V.  Mims,  35  Ala.  23 ;  Merrick  v.  Wallace,  19  111.  486,  497  ;  Tousley  v. 
Tousley,  5  Ohio  St.  78  ;  and  see  Wood's  App.,  82  Penn.  St.  116. 

6  Parrett  v.  Sliaubhut,  5  Minn.  323. 

6  Daggett  V.  Kankin,  31  Cal,  321. 


OP   THE  mortgagee's   INTEREST.  127 

over  other  liens  simultaneously  attaching.^  The  statutory 
provisions  of  the  several  States  in  respect  to  recording  mort- 
gages are  generally  the  same  as  relate  to  absolute  deeds, 
though  there  are  special  provisions  as  to  mortgages  in  some 
of  the  States.  In  some  they  become  liens  from  the  time  of 
filing,  in  others  from  the  time  of  registration.  In  Michigan, 
a  second  mortgage,  in  order  to  take  priority  of  a  former  one 
by  being  first  recorded,  must  have  been  made  for  value  actu- 
ally paid.  A  mere  promise  to  pay  a  third  person  would  not 
be  sufficient. 2  The  same  rule  prevails  in  Ohio,  so  far  as 
others  than  the  parties  to  the  mortgage  are  concerned,  al- 
though  the  second,  mortgagee  knew  of  the  prior  one  when  he 
received  it.^  So,  in  that  State,  a  mortgage  requires  two 
witnesses  to  give  it  validity ;  and  if  executed  with  a  less 
number,  a  subsequent  deed,  properly  executed,  will  take  pre- 
cedence of  it,  though  taken  with  the  knowledge  of  such  prior 
incomplete  deed.*  In  Pennsylvania,  a  judgment  takes  pre- 
cedence of  an  unrecorded  mortgage.^  But  it  is  competent  for 
two  mortgagees,  by  agreement,  to  give  a  second  mortgage  the 
precedence  of  a  prior  one,  so  as  to  bind  their  assignees,  if  it 
be  done  by  a  proper  instrument  put  upon  record.^  As  be- 
tween the  parties  themselves,  a  mortgage  is  good  without 
registration.'''  So  it  is  against  subsequent  purchasers  with 
notice,  if  clearly  proved.^  An  unrecorded  mortgage  is  good 
against  the  mortgagor,    his   heirs  and   grantees,    or  against 

1  United  States  v.  New  Orleans  R.  R.  Co.,  12  Wall.  362  ;  Daly  v.  N,  Y.  &  G. 
L.  Ry.  Co.,  55  N.  J.  Eq.  595  ;  s.  c.  .38  Atl.  Rep.  202. 

2  Stone  V.  Welling,  14  Mich.  514;  Thomas  v.  Stone,  Walker,  Oh.  117;  Gary 
V.  White,  52  N.  Y.  138. 

3  Bloom  V.  Noggle,  4  Ohio  St.  45,  55  ;  Stansell  v.  Roberts,  13  Ohio,  148  ;  Hol- 
liday  v.  Franklin  Bk.,  16  Ohio,  533  ;  Spader  v.  Lawler,  17  Ohio,  371,  379. 

*  Whiter.  Denman,  16  Ohio,  59. 

6  Semple  v.  Burd,  7  S.  &  R.  286. 

6  Clason  V.  Shepherd,  6  Wis.  369,  374  ;  Mut.  Loan  Ass.  v.  Elwell,  38  N.  J. 
Eq.  18. 

■^  Andrews  v.  Burns,  11  Ala.  691  ;  Salmon  v.  Ciagett,  3  Bland,  125  ;  Fosdick 
V.  Barr,  3  Ohio  St.  471  ;  Leggett  v.  Bullock,  Busliee  (N.  C),  283  ;  Howard  Mut. 
Assoc.  V.  Mclntyre,  3  Allen,  571. 

8  Copeland  v.  Copeland,  28  Me.  525  ;  Solms  v.  McCullock,  5  Penn.  St.  473  ; 
Bearing  v.  Watkins,  16  Ala.  20  ;  Sparks  v.  State  Bk.,  7  Blackf.  469  ;  Woodworth 
V.  Guzman,  1  Gal.  203  ;  Gen.  Ins.  Co.  v.  U.  S.  Ins.  Co.,  10  Md.  617  ;  Harris  v. 
Norton,  16  Barb.  264. 


128  MORTGAGES. 

mortgagees  with  notice,  and  generally  also  against  voluntary 
assignees  in  favor  of  creditors.  But  it  would  not  avail  against 
the  purchasers  at  a  sale  made  by  order  of  the  Orphans'  Court 
to  satisfy  the  debtors  of  the  mortgagor. ^  And  a  priority  of 
registration  gives  no  precedence  of  right  against  a  prior  mort- 
gage, of  which  the  junior  mortgagee  who  obtains  the  registra- 
tion had  notice  when  he  took  his  mortgage. ^  An  unrecorded 
mortgage  is  a  lien  as  against  an  assignee  of  the  mortgagor  in 
trust  for  the  benefit  o£  creditors,  such  assignee  being  regarded 
neither  as  creditor  nor  purchaser  for  value.^  Where  a  mort- 
gage, and  a  subsequent  deed,  by  the  same  grantor,  of  the 
same  estate,  were  made  to  different  persons  in  Pennsylvania, 
who  failed  to  have  them  recorded  within  six  months,  and 
then  the  mortgage  was  first  recorded,  it  was  held  to  take  pre- 
cedence of  the  deed,  though  the  grantee  in  the  latter  was 
actually  in  possession  under  it.*  Subsequent  to  the  execu- 
tion of  a  mortgage,  the  premises  covered  by  it  were  sold  by 
the  mortgagor  in  separate  parcels  to  different  purchasers,  who 
had  no  notice  of  the  mortgage,  and  one  of  those  deeds  was 
prior  in  date  to  another  which  was  first  recorded.  It  was 
held,  that,  in  a  proceeding  under  the  mortgage,  the  one  hold- 
ing under  the  first  deed  took  precedence  of  the  second,  though 
the  latter  was  first  recorded.^  In  establishing  the  fact  of 
notice  of  a  prior  incumbrance,  the  mortgagor  is  himself  a 
competent  witness.^ 

§  1077.     Effect  of    Defective    Registration   on   Notice.  —  It    is 

1  Nice's  Appeal,  54  Penn.  St.  200,  202. 

2  Gen.  Ins.  Co.  v.  U.  S.  Ins.  Co.,  10  Md.  517  ;  1  Story,  Eq.  Jur.  §  421  ;  Dor- 
row  V.  Kelly,  1  Dall.  142  ;  Wyatt  v.  Stewart,  34  Ala.  716  ;  Bell  v.  Thomas,  2  Iowa, 
384.      But  see  Hendrickson  v.  Woolley,  39  N.  J.  Eq.  307. 

3  Mellon's  App.,  32  Penn.  St.  121.  Contra,  Swift  v.  Thompson,  9  Conn.  63. 
And  in  a  few  States  a  statutory  assignee  is  given  the  standing  of  a  creditor  and 
purchaser  for  value.  See  Pillsbury  v.  Kingon,  33  N.  J.  Eq.  287  ;  Freeland  v. 
Freeland,  102  Mass.  475;  Wis.,  Laws  of  1882,  c.  170;  Einstein  v.  Shouse,  24 
ria.  490  ;  s.  c.  5  So.  P>,ep.  380. 

4  Souder  v.  Moitow,  33  Penn.  St.  83. 

5  Ellison  V.  Pecare,  29  Barb.  333.  This  was  so  held  because  the  statute  of 
registration  did  not  apply  to  mere  equities.  The  precedence  was  effected  by  a  decree 
that  the  parcel  conveyed  by  tlie  second  deed  should  be  first  sold  for  payment  of  the 
mortgage-debt,  and  its  proceeds  applied  before  the  first  sold  parcel  should  be  sold 
at  all. 

6  Van  "VYagenen  v.  Hopper,  8  N.  J.  Eq.  684. 


OF   THE   mortgagee's   INTEREST.  129 

usually  provided  by  statute,  that,  in  order  to  the  registration 
of  a  conveyance,  the  deed  should  be  acknowledged  before 
some  magistrate  or  court,  and  a  certificate  thereof  entered 
upon  the  deed.  And  if  such  deed  is  registered  without 
such  an  acknowledgment,  the  registration  will  not  be  con- 
structive notice  to  any  one.^  And  the  proposition  is  a  gen- 
eral one,  that  an  irregular  registration  of  a  deed  is  no  notice 
to  others  of  the  existence  of  such  deed.^  But  an  omission  of 
the  register  to  note  the  time  of  receiving  the  deed  for  record, ^ 
or  to  enter  it  in  the  index  or  alphabet,*  will  not  invalidate 
the  effect  of  the  registration.  But  in  Iowa,  the  law  requires 
a  filing  of  a  deed  in  the  registry,  a  copying  upon  the  records, 
and  an  indexing  it;  and  an  omission  to  do  either  of  these 
will  fail  to  render  the  registration  of  an  instrument  construc- 
tive notice  to  third  parties.^  In  Pennsylvania,  the  court  hold 
that  the  record  of  a  deed  is  not  constructive  notice  to  third 
parties,  unless  it  is  duly  indexed.  "The  index  is  an  indis- 
pensable part  of  the  recording,  and  without  it  the  record 
affects  no  party  with  notice."*  But  in  Missouri  and  some 
other  States  it  is  held  that  a  deed  filed  and  recorded  in  the 
recorder's  office  is  notice  to  subsequent  purchasers,  not- 
withstanding the  failure  of  the  officer  to  index  it.'  A  deed 
noted  for  registration,  though  not  actually  recorded  till 
subsequently  to  a  prior  deed  which  was  received  for  record 
after  the  second  deed,  will  take  precedence  of  such  prior 
deed.^ 

§  1078.  The  Doctrine  of  Lis  Pendens,  being  a  notice  to  par- 
ties interested,  applies  to  the  case  of  a  mortgage  upon  which 

1  Work  V.  Harper,  24  Miss.  517  ;  White  v.  Denman,  1  Ohio  St.  110  ;  Blood  v. 
Blood,  23  Pick.  80. 

2  Rushin  v.  Shields,  11  Ga.  636  ;  Dewitt  v.  Moulton,  17  Me.  418  ;  Farmers'  Bk. 
V.  Bronson,  14  Mifh.  361  ;  Reeves  v.  Ha3'es,  95  Ind.  521. 

8  McLarren  v.  Thompson,  40  Me.  234 ;  Handley  v.  Howe,  22  Me.  560.  See 
Barney  v.  McCarty,  15  Iowa,  510,  521. 

*  Curtis  V.  Lyman,  24  Vt.  338. 

6  Jliller  V.  Bradford,  12  Iowa,  14  ;  Barney  v.  McCarty,  15  Iowa,  510  ;  "Whalley 
V.  Small,  25  Iowa,  184. 

6  Speer  v.  Evans,  47  Penn.  St.  144. 

■^  Bishop  V.  Schneider,  46  Mo.  472  ;  Curtis  v.  Lyman,  24  Vt.  338  ;  Comm'rs 
V.  Babcock,  5  Oreg.  472  ;  Throckmorton  v.  Price,  28  Tex.  605. 

8  Ruggles  V.  Williams,  1  Head,  141.  See  post,  §  2200  ;  1  Jones,  Morrg.  §§  456- 
577. 

VOL.    II.  —  9 


130  MORTGAGES. 

a  suit  for  foreclosure  is  pending.     Service  made  in  such  suit 
is  notice  of  its  having  been  begun. ^ 

§1079.  Of  recording  Assignments. — Notwithstanding  the 
effect  given  to  a  regiftration  of  a  conveyance  in  the  way  of 
notice,  tlie  registration  of  an  assignment  of  a  mortgage  has 
been  held  not  to  be  of  itself  constructive  notice  to  the  mort- 
gagor of  its  having  been  made,  even  where  the  law  requires 
such  assignment  to  be  recorded.  ^  And  a  payment  made  to  a 
mortgagee  without  notice  of  an  assignment  will  be  a  good 
payment.^  In  Michigan,  an  exception  is  made  if  the  mort- 
gage-note be  negotiable,  and  is  negotiated  by  the  mortgagee 
before  it  is  due.^  But  it  would  be  notice  as  against  subse- 
quent assignees  of  the  mortgage;^  and  such  prior  assignee 
should  cause  his  assignment  to  be  recorded  for  his  own  pro- 
tection.^ The  whole  object  of  the  registration  acts  is  to 
protect  subsequent  purchasers  and  incumbrancers  against 
previous  deeds  and  mortgages,  etc.,  which  are  not  recorded. 
The  recording  of  a  deed  or  mortgage,  therefore,  is  construc- 
tive notice  only  to  those  who  have  subsequently  acquired 
some  interest  or  right  in  the  property  under  the  grantor  or 
mortgagor;  though  the  question,  how  far  the  case  of  a  mort- 
gage to  secure  future  advances  forms  an  exception  to  this 
rule,  will  be  considered  hereafter.^     In  some  of  the  States  it 

1  Hoole  V.  Attornej'-General,  22  Ala.  190.  See  Center  v.  P.  &  M.  Bk.,  id.  743  ; 
Newman  v.  Chapman,  2  Rand.  93  ;  McPherson  v.  Housel,  13  N".  J.  299.  See 
Fisher,  Mortg.  336  ;  Haven  v.  Adams,  8  Allen,  363  ;  Jackson  v.  Warren,  32  111. 
331.  Any  person  purchasing  the  subject-matter  of  a  suit  lite  jKridcnte  is  bound  by 
the  judgment.     Cole  v.  Lake  Co.,  54  N.  H.  242,  272. 

2  Wolcott  V.  Sullivan,  1  Edw.  Ch.  399  ;  Reed  v.  Marble,  10  Paige,  409 ;  Pickett 
V.  Barron,  29  Barb.  505  ;  Mitchell  v.  Burnham,  44  Me.  286,  302  ;  post,  §  2200  ; 
Williams  v.  SoiTell,  4  Ves.  389. 

3  Mitchell  V.  Burnham,  44  Me.  302;  James  v.  Johnson,  6  Johns.  Ch.  417;  Ind. 
State  Bk.  v.  Anderson,  14  Iowa,  544  ;  Johnson  v.  Carpenter,  7  Minn.  176. 

*  Jones  V.  Smith,  22  Mich.  360,  365.  So  Kansas,  Burhans  v.  Hutcheson,  25 
Kan.  625  ;  at  least,  after  the  mortgage  is  recorded,  Lewis  v.  Kirk,  23  Kan.  497 ; 
and  Indiana,  Reeves  v.  Hayes,  95  Ind.  521 ;  Dixon  v.  Hunter,  57  Ind.  274,  prior 
to  the  Act  of  1877  ;  R.  S.  1881,  §  1093. 

5  N.  Y.  L.  I.  Co.  V.  Smith,  2  Barb.  Ch.  82. 

6  Clark  V.  Jenkins,  5  Pick.  280  ;  Williams  v.  Birbeck,  1  Hoff.  Ch.  359  ;  Wil- 
liams v.  Jackson,  17  Cent.  L.  J.  148;  Ogle  v.  Turpin,  102  III.  148  ;  Summers  v. 
Kilgus,  14  Bush,  449  ;  Henderson  i'.  Pilgrim,  22  Tex.  464. 

'  Stuyvesant  v.  Hall,  2  Barb.  Ch.  151  ;  4  Kent,  Com.  174,  note  ;  Bell  v.  Flem- 
ing, 12  N.  J.  Eq.  13 ;  Blair  v.  Ward,  10  N.  J.  Eq.  119 ;  post,  §  1093. 


OF   THE    mortgagee's   INTEREST.  131 

has  been  held,  that,  where  a  mortgage  has  been  assigned  for 
a  valuable  consideration,  even  a  bona  fide  purchaser,  without 
notice,  cannot  object  to  its  validity  and  effect,  though  not 
recorded ;  ^  which  is  in  accordance  with  the  idea  that  it  is  a 
mere  chose  in  action,  transferable  by  delivery  or  parol ;  and, 
of  course,  whoever  takes  an  estate  upon  which  there  is  a 
recorded  outstanding  mortgage  is  put  to  inquire  in  whose 
hands  the  mortgage  title  is,  without  any  further  notice.  If 
a  junior  mortgagee,  with  notice  of  a  prior  unrecorded  mort- 
gage, assigns  his  mortgage  to  one  who  has  no  notice  thereof, 
and  the  latter  records  his  assignment  before  the  first  mort- 
gage is  recorded,  he  thereby  acquires  a  precedence  over  the 
first  mortgagee.  So  if  a  junior  mortgagee  in  a  recorded  mort- 
gage, without  notice  of  a  prior  unrecorded  mortgage,  assign 
to  one  who  has  notice  of  such  prior  mortgage,  the  assignee 
will  have  preference  over  the  last-mentioned  mortgage,  since 
he  has  the  rights  in  that  case  of  his  assignor.^ 

§  1080.  Of  Judgment  and  Mortgage  Liens.  —  In  SOme  of  the 
States  a  judgment  forms  a  lien  upon  the  real  estate  of  the 
debtor,  and  in  some  of  these  a  docketed  judgment  is  preferred 
to  a  prior  unregistered  mortgage.^  And  if  the  priority  can- 
not be  determined,  they  will  be  satisfied  pro  rata.^  In  others, 
a  mortgage  unrecorded  will  take  priority  of  a  subsequent 
judgment  docketed.  But  if  the  sheriff  proceeds  to  sell  under 
such  judgment  to  a  bona  fide  purchaser  before  the  mortgage  is 
registered,  the  purchaser  will  have  the  rights  of  a  purchaser, 
and  be  protected  against  such  mortgage.^ 

§  1081.  Doctrine  of  tacking.  —  In  England  there  is  a  doc- 
trine in  relation  to  mortgages,  by  which,  if  there  were,  for 

1  Wilson  V.  Kimball,  27  N.  H.  300;  Cicotte  v.  Gagnier,  2  Mich.  381.  See  Mott 
V.  Clark,  9  Penn.  St.  399.  See  Stat,  of  Penn.  18-19,  p.  527 ;  1872,  vol.  1,  p.  471,  that 
assignments  will  be  notice  if  recorded.  So  Philips  j;.  Lewistown  Bk.,  18  Penn.  St. 
394. 

2  Fort  V.  Burch,  5  Denio,  187.  See  La  Farge  Ins.  Co.  v.  Bell,  22  Barb.  54 
upon  what  the  priority  among  several  mortgagees  depends. 

8  Friedley  v.  Hamilton,  17  S.  &  R.  70  ;  Davidson  v.  Cowan,  1  Dev.  F.q.  470; 
Sturgess  v.  Cleveland,  3  McLean,  140  ;  Uhler  v.  Hutchinson,  23  Penn.  St.  110. 

*  Hendrickson's  App.,  24  Penn.  St.  363.  See  Sigourney  v.  Eaton,  14  Pick. 
414,  that  two  simultaneous  attaching  creditors  will  share  equally  in  levying  upon 
real  estate. 

6  Jackson  v.  Dubois,  4  Johns.  216  ;  Schmidt  v.  Hoyt,  1  Edw.  Ch.  652  ;  Hamp- 
ton V.  Levy,  1  McCord,  Ch.  107. 


132  MORTGAGES. 

instance,  three  successive  mortgages,  without  notice,  upon 
the  same  estate,  to  three  different  persons,  and  the  third 
acquires  the  first  mortgage  by  assignment,  he  may  hold  the 
estate  against  the  second  until  he  shall  have  paid  both  the 
first  and  the  third.  This  is  called  "tacking"  of  mortgages, 
and  rests  upon  the  idea  that  the  equities  of  the  parties  are 
all  equal,  and  the  first,  being  in  possession,  shall  not  be 
obliged  to  give  up  his  legal  right  of  possession  till  his  whole 
charge  upon  the  estate  is  satisfied.^  So,  where  a  mortgagee 
makes  a  further  advance,  and  has  no  notice  of  any  claim 
adverse  to  his  title,  being  regarded  as  a  purchaser  for  value, 
he  is  entitled  to  tack  the  further  advance  to  the  original  mort- 
gage. ^  But  in  this  country,  this  doctrine  is  wholly  super- 
seded by  the  principle  of  registration,  w^hereby  the  record  of 
a  prior  mortgage  is  constructive  notice  to  all  parties  of  its 
existence.  '  If  it  is  not  recorded,  and  the  second  has  no  notice 
of  it,  in  fact,  his  own  takes  precedence  of  the  prior  one,^  In 
Pennsylvania  it  is  expressly  held  that  a  mortgage  is  security 
only  for  the  specific  debt  for  which  it  was  given  ;^  while  in 
other  of  the  States  the  courts  have  allowed  a  mortgagee  to 
hold  the  premises  against  a  mortgagor,  his  heir  or  devisee, 
until  all  subsequent  advances  made  by  the  mortgagee  to  the 
mortgagor  shall  have  been  paid,  in  case  such  mortgagor,  his 
heir  or  devisee,  shall  seek  to  redeem  the  mortgaged  premises. 
But  this  does  not  apply  as  to  purchasers  or  incumbrancers 
whose  rights  arise  after  the  making  of  such  mortgage;  nor 
is  it  allowed  to  the  mortgagee  if  he  undertakes  to  enforce  his 
mortgage  by  foreclosure.^ 

1  Wms.  Eeal  Trop.  363. 

2  Young  V.  Young,  L.  R.  3  Eq.  801,  805. 

3  4  Dane,  Abr.  171  ;  Grant  v.  Bissett,  1  Gaines,  Cas.  112  ;  Coote,  Mortg.  (Am. 
ed.)  386,  n.  ;  M'Kinstry  v.  Merwin,  3  Johns.  Ch.  466  ;  Burnet  v.  Denniston,  5  Johns. 
Ch.  35;  Bridgen  v.  Carhartt,  1  Hopk.  Ch.  231  ;  Osborn  v.  Carr,  12  Conn.  195; 
Brazee  v.  Lancaster  Bk.,  14  Ohio,  318  ;  Anderson  v.  Tseff,  11  S.  &  E.  208  ;  Loring 
V.  Cooke,  3  Pick.  48  ;  Green  v.  Tanner,  8  Met.  411  ;  Jlarsh  v.  Lee,  1  Wliite  &  Tnd. 
Lead.  Cas.  406,  Ara.  ed.  See  also  Averill  v.  Guthrie,  8  Dana.  82  ;  Thompson  v. 
Chandler,  7  Me.  377,  381  ;  Siter  v.  McClanachan,  2  Gratt.  280,  305. 

*  Dorrow  v.  Kelley,  1  Dall.  142  ;  Anderson  v.  Neff,  supra  ;  Thomas'  App.,  30 
Penn.  St.  378. 

5  Lee  V.  Stone,  5  Gill  &  J.  1  ;  Coombs  v.  Jordan,  3  Bland,  284  ;  Downing  v. 
Palmateer,  1  T.  B.  Mon.  64  ;  Siter  v.  McClanachan,  2  Gratt.  280  ;  Walling  v.  Aiken, 
1  McMuUan,  Eq.  1. 


OF   THE   mortgagee's   INTEREST.  133 

§  1082.  Extension  of  Lien  in  Massachusetts.  — Although  the 
English  doctrine  of  tacking  does  nut  apply  in  Massachusetts, 
the  courts  sometimes  virtually  extend  the  lien  of  a  mortgage 
hcyond  securing  the  debt  originally  contemplated  by  the  par- 
ties, when  the  rights  of  third  persons  are  not  impaired,  by 
refusing  relief  to  the  mortgagor  in  redeeming  his  estate, 
unless  he  pays  such  additional  sums.  Thus,  though  after  a 
mortgage  has  been  satisfied  it  cannot  be  made  a  security  for 
a  new  debt  by  an  oral  agreement  between  the  parties,  yet  if 
such  agreement  has  been  made,  and  money  advanced  by  the 
mortgagee  to  the  mortgagor  upon  the  strength  of  it,  the  court 
will  not  aid  the  mortgagor  or  any  one  claiming  under  him, 
with  notice,  to  cause  the  mortgage  to  be  cancelled  or  released 
until  such  additional  advances  shall  have  been  repaid.  ^  So 
where,  after  a  breach  of  the  condition  of  a  mortgage,  the 
mortgagee  advances  money  to  the  mortgagor  under  an  oral 
agreement  that  the  mortgage  should  stand  as  security  there- 
for, the  court  will  not  allow  the  mortgagor,  or  any  one  having 
no  better  equity  than  he,  to  redeem  the  estate  without  allow- 
ing and  paying  such  advancements. ^ 

§  1083.  Mortgages  for  Future  Advances.  —  It  is,  however,  of 
frequent  occurrence,  that  a  mortgage  provides  for  further  ad- 
vances or  liabilities,  and  is  so  made  as  to  cover  these;  and 
such  a  mortgage  may  be  valid,  if  made  lona  fide,  and  so 
framed  as  to  disclose  the  purposes  of  the  mortgage,  together 
with  the  means  of  ascertaining  the  amount  of  such  advances 
or  liabilities,  so  that  creditors,  or  after-purchasers,  or  mort- 
gagees, may  know  to  what  the  estate  is  subject  when  they 
purchase.^     And  these  advances  may  be  to  be  made  to  the 

1  Joslyn  V.  Wyman,  5  Allen,  62  ;  post,  §  1120. 

2  Stoue  V.  Laue,  10  Allen,  74  ;  Upton  i\  So.  Read.  Bk.,  120  Mass.  1.53. 

3  United  States  v.  Hooe,  3  Cranch,  73  ;  Conard  v.  Atlantic  Ins.  Co.,  1  Pet.  386, 
448  ;  Badlam  v.  Tucker,  1  Pick.  389  ;  St.  And.  Ch.  v.  Tompkins,  7  Johns.  Ch.  14  ; 
Hubbard  v.  Savage,  8  Conn.  215  ;  Crane  v.  Deniing,  7  Conn.  387.  In  this  case 
the  advances  were  made  after  subsequent  mortgages  upon  the  same  estate,  but  held 
to  be  secured  by  the  prior  mortgage.  Shirras  i'.  Caig,  7  Cranch,  34  ;  Leeds  y. 
Cameron,  3  Sumn.  488  ;  Seaman  v.  Fleming,  7  Rich.  Eq.  283  ;  Collins  v.  Carlile, 
13  111.  254;  Commercial  Bk.  v.  Cunningham,  24  Pick.  270;  Truscott  v.  King, 
6  N.  Y.  147  ;  Craig  v.  Tappin,  2  Sandf.  Ch.  78  ;  Shepard  v.  Shepard,  6  Conn.  37  ; 
Lewis  V.  De  Forest,  20  Conn.  427  ;  Handy  v.  Comni.  Bk.,  10  B.  Mon.  98  :  Ketchum 
V.  Jauncey,  23  Conn.  123;   Goddard  v.  Sawyer,  9  Allen,  78;  Adams  v.  "Wheeler, 


1^4  MORTGAGES. 

mortgagor  or  third  persons, ^  and  in  other  property  than 
money. ^  The  bona  fides  in  these  cases  is  a  question  of  fact. 
But  the  consideration  expressed  is  no  test  of  the  validity  of 
such  a  mortgage,  if  made  for  future  advances ;  nor  is  it  neces- 
sary that  the  deed  should  stipulate  as  to  the  amount  of  such 
advances.^  And  the  liberality  which  courts  of  late  extend 
toward  advances  made  with  a  view  of  being  covered  by  exist- 
ing mortgages  makes  this  limitation  rather  a  nominal  than  a 
real  one.  It  seems  to  be  enough  that  the  mortgage  indicates 
the  mode  of  ascertaining  what  sums  it  covers,  although  to  do 
this  recourse  must  be  had  to  collateral  proof  by  parol  evi- 
dence. Thus  it  was  held  in  Ohio  to  be  sufficient  that  it  could 
be  shown  by  evidence  what  indebtedness  was  intended.^  In 
another  case,  the  condition  of  the  mortgage  was  to  secure 
the  payment  of  moneys  then  due,  or  that  might  thereafter 
become  due,  from  a  third  person  to  the  mortgagee.^  In  New 
York,  the  deed  in  one  case  recited  that  it  was  contemplated 
to  make  loans  and  advances  from  time  to  time;  and  the  con- 
dition was  to  pay  "all  such  drafts  and  bills  of  exchange  as 
may  be  discounted  or  advanced,"  without  fixing  any  limit  as 
to  time  or  amount ;  —  and  it  was  held  to  be  good.  In  Vermont,^ 
a  condition  in  a  mortgage  to  pay  "  all  I  now  or  may  hereafter 
owe  the  mortgagee  "  is  good,  and  the  same  rule  is  applied  in 
Michigan."  If  the  amount  limited  in  terms,  in  the  mortgage, 
of  the  advances  to  be  thereby  secured,  has  been  advanced,  it 
would  not  be  competent,  as  against  a  junior  incumbrancer,  to 
show  by  parol  that  it  was  intended  to  cover  a  further  indebt- 

10  Pick.  199  ;  Foster  v.  Reynolds,  38  Mo.  5.53  ;  Youngs  v.  Wilson,  24  Barb.  510 ; 
Vanmeter  v.  Vanmeter,  3  Gratt.  148  ;  Burdett  v.  Clay,  8  B.  Mon.  287;  Thomas 
V.  Kelsey,  30  Barb.  268  ;  Wilson  v.  Russell,  13  Md.  494,  536  ;  Bell  v.  Fleming, 
12  K  J.  Eq.  13,  16;  Lawrence  v.  Tucker,  23  How.  14;  Thacher  v.  Churchill, 
118  Mass.  108  ;    Hall  v.  Tay,  131  Mass.  192. 

1  Maffitt  V.  Rynd,  69  Penn.  St.  380. 

2  Brooks  V.  Lester,  36  Md.  65. 

3  Miller  v.  Lockwood,  32  N.  Y.  293  ;    McKinster  t;.  Babcock,  26  N.  Y.  378. 
Otherwise  in  Maryland  by  statute.     Gen.  Stat.  1888,  art.  Q&,  §  2. 

*  Hurd  V.  Robinson,  11  Ohio  St.  232. 

5  Kramer  v.  Farmers'  Bk.,  15  Ohio,  253.     See  McDaniels  i'.  Colvin,  16  Yt.  300  ; 
Seymour  u.  Darrow,  31  Vt.  122  ;  Craig  v.  Tappin,  2  Sandf.  Ch.  78. 

6  Robinson  v.  Williams,  22  N.  Y.  380  ;  Youngs  v.  Wilson,  27  K  Y.  351. 

"<  McDaniels  v.  Colvin,  16  Yt.  300;  Seymour  v.  Darrow,  31  Yt.   122  ;  Soule  v. 
Albee,  id.  142  ;  Mich.  Ins.  Co.  v.  Brown,  11  Mich.  265. 


OF   THE   mortgagee's   INTEREST.  135 

ednoss.'  So  if  the  condition  covers  "debts  accruing  upon 
some  written  contract  or  agreement  signed,  etc.  ; "  no  debt 
not  coming  within  this  description  can  be  held  to  be  secured 
by  the  mortgage. ^  If  given  to  indemnify  for  having  signed 
a  note,  parol  evidence  is  competent  to  show  that  the  note  pro- 
duced was  the  one  intended.''  If  the  time  within  which  the 
future  advances  are  contemplated  to  be  made  is  limited  in 
the  mortgage,  any  advances  made  afterwards  will  not  be  cov- 
ered by  the  mortgage.* 

§  1084.  Mortgages  for  Future  Advances,  continued.  — In  New 
Hampshire,  a  mortgage  cannot  cover  future  advances;  and  if 
made  for  a  present  debt  and  future  advances,  it  will  be  good 
for  the  former,  but  not  for  the  latter.^  But  such  mortgage 
would  be  good,  though  made  in  New  Hampshire,  if  the  estate 
mortgaged  were  situated  in  Massachusetts.®  The  court  of 
Connecticut  held,  that,  where  the  mortgagee  was  by  his 
contract  with  the  mortgagor  bound  to  make  the  advances 
intended  to  be  secured  by  the  mortgage,  he  would  take  pre- 
cedence of  intermediate  mortgagees.''  But  the  general  rule 
seems  to  be,  that  optional  future  advances  will  be  postponed 
to  mortgages  made  after  the  one  providing  for  such  advances 
and  before  they  were  actually  made,  of  which  the  mortgagee 
making  the  advances  had  notice  before  making  them.^  The 
general  view  of  American  courts  is  that  this  notice  must  be 
actual  and  that  constructive  notice  by  recordation  of  the 
after-made  mortgage  is  not  sufficient.^ 

1  Murray  v.  Barney,  34  Barb.  336,  347 ;  Utica  Bk.  v.  Finch,  3  Barb.  Ch.  293. 

2  Walker  v.  Paine,  31  Barb.  213. 

8  Goddard  v.  Sawyer,  9  Allen,  78  ;    Bell  v.  Fleming,  12  N.  J.  Eq.  13. 
*  Miller  v.  Whittier,  36  Me.  577;  Truseott  v.  King,  6  N.  Y.  147. 
6  N.  H.  Bk.  V.  Willard,  10  N.  H.  210  ;  Johnson  v.  Richardson,  38  N".  H.  353. 
6  Goddard  v.  Sawyer,  9  Allen,  78. 

^  Crane  v.  Deining,  7  Conn.  387;  Boswell  v.  Goodwin,  31  Conn.  74  ;  Cox  v. 
Hoxie,  115  Mass.  120,  sustains  this  view. 

8  Spader  v.  Lawler,  17  Ohio,  371  ;  Frye  v.  Illinois  Bk.,  11  111.  367.  See 
Brinkerhotf  v.  Marvin,  5  Johns.  Ch.  320  ;  Ter  Hoven  v.  Kerns,  2  Penn.  St.  96  ; 
Montgomery  Co.  Bk.  App.,  36  Penn.  St.  170;  Ladue  v.  Detroit,  etc.  R.  R.,  13 
Mich.  380,  408. 

9  Anderson  v.  Liston,  69  Minn.  82;  s.  c.  72  N.  AV.  Rep.  52  ;  Union  Nat.  Bank 
V.  Milburd  &  Stoddard  Co.,  7  N.  Dak.  201  ;  s.  c.  73  N.  AV.  Rep.  527  ;  Schmidt 
v.  Zahrudt,  148  Ind.  447;  s.  c.  47  N.  E.  Rep.  335.  Contra,  Spader  v.  Lawler, 
17  Ohio,  371 ;  Ter  Hoven  v.  Kerns,  2  Barr,  96  ;  Parmentier  v.  Gillespie,  9  Barr,  86. 


136  MORTGAGES. 

§  1085.  Mortgage  as  affecting  After-acquired  Property.  —  As 
a  general  proposition,  a  man  cannot  mortgage  property  which 
he  does  not  own.i  But  whatever  buildings,  improvements,  or 
fixtures  a  mortgagor  puts  upon  mortgaged  premises,  become 
a  part  of  the  premises,  and  are  covered  by  the  mortgage ;  '^  and 
this  would  be  understood  to  embrace  a  steam  saw-mill,  en- 
gines, fixtures,  etc.**  And  this  extends  to  equitable  as  well 
as  legal  mortgages.*  And  the  principle  is  very  broad,  in- 
cluding trade  fixtures  attached  to  buildings  by  bolts  and 
screws,  although  they  may  be  removed  without  injury  to  the 
freehold.^  So  it  applies  to  whatever  is  added  to  a  railroad 
under  mortgage,  although  furnished  by  the  holders  of  a  sub- 
sequent mortgage.^  And  to  all  improvements  made  upon 
mortgaged  premises.  Neither  the  mortgagor  nor  his  grantee 
can  claim  allowance  for  the  same.'''  : 

§  1086.  Same  —  Railway  Rolling-stock.  —  And  this  has  been 
carried  in  the  case  of  railroads  so  far  as  to  embrace  the  fran- 
chise, and,  as  an  accession  to  that,  whatever  property  the  cor- 
poration afterwards  acquired.^     The  courts  of  New  York  at 

1  Looker  v.  Peckwell,  38  N.  J.  253  ;  Ross  v.  Wilson,  7  Bush,  29.  Hence,  a 
mortfao-e  of  crops  not  yet  planted  is  void  at  law,  Toailinson  v.  Greenfield,  31 
Ark.  557;  Eedd  v.  Burrus,  58  Ga.  574  ;  though  good  in  equity  and  operative  when 
the  crops  come  into  existence,  Mitchell  v.  Winslow,  2  Story,  630  ;  Smithiirst  v. 
Edmunds,  14  N.  J.  Eq.  408;  Jones  v.  Webster,  48  .\la.  109  ;  Arques  v.  Wa.sson, 
51  Cal.  620  ;  Evermann  v.  Robb,  52  Miss.  653.  But  see  Van  Hoozer  v.  Cory, 
84  Barb.  9,  12. 

2  Winslow  V.  Merch.  Ins.  Co.,  4  Met.  306  ;  Pettengill  v.  Evans,  5  N.  H.  54  ; 
Sands  v.  Pfeiffer,  10  Cal.  258 ;  Butler  v.  Paige,  7  Met.  40  ;  Buruside  v.  Twitchell, 
43  N.  H,  390 ;  Walmsley  v.  Milne,  7  C.  B.  N.  s.  115,  case  of  a  steam-engine,  etc.  ; 
Snedeker  v.  Warring,  12  N.  Y.  170,  case  of  a  statue  ;  Meriam  v.  Brown,  128  Mass. 
391,  rails  laid  by  railroad  without  taking  the  land  ;  Laflin  v.  Griffiths,  35  Barb.  58  ; 
Jones  V.  Richardson,  10  Met.  481,  488  ;  Place  v.  Fagg,  4  Man.  &  R.  277  ;  ante, 
§§  3,  4,  5 ;  Hoskin  v.  Woodward,  45  Penn.  St.  42 ;  Davis  v.  Buffum,  51  Me.  160  ; 
Preston  v.  Briggs,  16  Vt.  124  ;  Cole  v.  Stewart,  11  Gush.  181.  In  Bryant  v.  Pen- 
nell,  61  Me.  108,  new  shrubs,  grown  from  the  old,  pass  by  a  mortgage  of  a  nursery. 

8  Brennan  o.  Whitaker,  15  Ohio  St.  446;  Daniels  v.  Bowe,  25  Iowa,  403. 

*  Tebb  V.  Hodge,  L.  R.  5  C.  P.  73. 

5  Longbottom  v.  Berry,  L.  R.  5  Q.  B.  123 ;  State  Bk.  v.  Kircheval,  65  Mo. 
682, 

6  Galveston  R.  R.  v.  Cowdrey,  11  Wall.  459,  482. 

•  Martin  v.  Beatty,  54  111.  100. 

8  Pierce  v.  Emery,  32  N.  H.  484.  But  this  case,  so  far  as  it  included  future 
property  without  express  language  to  that  effect,  or  unless  the  property  was  strictly 
appurtenant,  has  not  been  followed.     Dinsmore  v.  Racine  &  M.  R.  R.,  12  Wis. 


OF   THE   mortgagee's    INTEREST.  137 

one  time  treated  the  rolling-stock,  cars,  engines,  etc.,  of  such 
a  company  as  fixtures  of  the  road,  and  as  passing  under  a 
mortgage  of  the  road.^  But  in  later  cases  they  hold  such 
rolling-stock  to  be  personalty,  and  not  a  part  of  the  realty. ^ 
The  United  States  courts  favor  the  idea  of  its  being  a  part  of 
the  realty,  and  passing  by  a  mortgage  of  that.^  In  Vermont, 
the  matter  seems  to  be  determined  by  statute,  declaring  it  a 
part  of  the  realty.*  And  such  appears  to  be  the  opinion  of 
the  courts  of  Kentucky  and  Tennessee.^  In  Illinois,  Pennsyl- 
vania, Maine,  and  Alabama,  such  rolling-stock  is  held  a  part 
of  the  realty.^  Mr.  Jones  has  also  discussed  the  matter  at 
length;"  and  it  may  be  stated  in  this  connection,  that  no  rail- 

649;  Coe  v.  Columbus  K.  R.,  10  Ohio  St,  372;  Miss.  Vail.  Co.  v.  Chicago 
R.  R.,  58  Miss.  896.  So  Louisiana.  Rev.  Code  1870,  §  3308.  See  also  Bost., 
C.  &  M.  R.  R.  V.  Gilmore,  37  N.  H.  410,  419.  In  Hamlin  v.  Jerrard,  72  Me.  62, 
77,  the  point  is  waived.  If  such  future-acquired  property  is  in  terms  included,  it 
will  pass.  Phila.  R.  R.  v.  Woelper,  64  Penn.  St.  372  ;  Weetjen  v.  St.  Paul,  4  Hun, 
529  ;  Ehvell  v.  Grand  St.  R.  R.,  67  Barb.  83 ;  Hamlin  v.  Jerrard,  supra ;  Hamlin 
V.  Eur.  &  X.  A.  R.  R.,  72  Me.  83  ;  Emerson  v.  Eur.  &  N.  A.  R.  R.,  67  Me.  387  ; 
Holroyd  v.  Marshall,  10  H.  L.  Cas.  191,  223  ;  Willink  v.  Morris  Canal  Co.,  4  X.J. 
Eq.  377  ;  Phillips  v.  Winslow,  18  B.  Mon.  431.  And  changes  in  the  property  or 
location,  if  contemplated,  do  not  affect  the  result.  Hamlin  v.  Jerrard,  Ehvell  v. 
Grand  St.  R.  R.,  supra.  But  only  such  property  passes  as  is  clearly  within  the 
scope  of  the  mortgage,  Walsh  v.  Martin,  24  Ohio  St.  28  ;  Farmers'  L.  &  T.  Co.  v. 
Carey,  13  Wis.  110;  Brainerd  v.  Peck,  34  Vt.  498  ;  Bath  v.  Miller,  53  Me.  308  ; 
Morgan  v.  Donovan,  58  Ala.  241  ;  or  its  contemplation,  Emerson  v.  Eur.  &  N.  A. 
R.  R.,  supra;  Morgan  v.  Johnston,  53  Ala.  237;  Miss.  Vail.  Co.  v.  Chicago  R.  R., 
supra.  But  this  is  not  limited  in  extent  to  the  present  needs  of  the  company. 
Hamlin  v.  Eur.  &  N.  A.  R.  R.,  supra.     See  also  a^Uc,   §  19. 

1  Farmers'  Loan  Co.  v.  Hendrickson,  25  Barb.  484  :  Sangamon  R.  R.  r.  Morgan, 
14  111.  163. 

2  Hoyle  V.  Plattsb.,  etc.  R.  R.,  54  X.  Y.  314  ;  Randal  v.  Ehvell,  52  X.  Y.  521; 
Coe  V.  Columbus  R.  R.,  10  Ohio  St.  390  ;  Dinsmore  v.  Racine  &  M.  R.  R.,  12  Wis. 
649.  But  this  is  now  changed  by  statute  in  Xew  York.  2  R.  S.  (1875)  p.  555, 
§115. 

3  Minn.  Co.  v.  St.  Paul  Co.,  2  Wall.  609,  644,  645  and  note. 
*  Miller  v.  R.  &  W.  R.  R.,  36  Vt.  452,  490. 

5  Phillips  V.  Winslow,  18  B.  Mon.  431  ;  Douglass  v.  Cline,  12  Bush,  608,  630  ; 
Buck  V.  Memphis  R.  R.,  4  Cent.  L.  J.  430. 

6  Palmer  v.  Forbes,  23  111.  301  ;  McLaughlin  v.  Johnson,  46  111.  163  ;  Young- 
man  V.  Elmira  R.  R.,  65  Penn.  St.  278  ;  ilorrill  v.  Xoyes,  56  Me.  458  ;  Morgan  v. 
Donovan,  58  Ala.  241.  In  Illinois  this  is  now  changed.  Const.  1870,  art.  11,  §  10. 
So  in  Missouri  and  other  States.      Jones,  Railr.  Securities,  §  171.     See  §  19. 

'  Mortg.  §  452  ;  Railr.  Securities,  §§  146-187,  where  the  whole  subject  is  so 
fully  presented  that  no  further  statement  of  the  law  seems  to  be  called  for  in  this 
treatise.     See  also  2  Redf.  Railr.  533,  536. 


138  MORTGAGES. 

road  corporation  can  mortgage  its  road  and  franchise  without 
legislative  authority  so  to  do.^ 

§  1087.  "Waiving  Foreclosxire.  —  By  a  strict  foreclosure,  the 
mortgagee  acquires  an  absolute  estate  in  the  premises ;  but 
while  he  may,  after  entering  for  condition  brol^en  and  for 
purposes  of  foreclosure,  abandon  his  possession  and  waive 
such  entry,^  yet  if,  after  making  entry,  he  sue  a  tenant  in 
possession  who  is  a  tenant  at  will  of  the  mortgagor,  in  a  writ 
of  entry,  it  is  not  a  waiver  of  the  actual  entry  already  made 
by  him,  unless  in  such  suit  he  prays  for  conditional  judg- 
ment.^ But  he  may  waive  a  foreclosure  itself,  and  open  the 
mortgagor's  right  of  redemption  by  accepting  payinent  of  the 
mortgage-debt  as  an  existing  one;*  or,  in  some  cases,  even 
suing  for  the  debt,  or  for  an  alleged  balance  due  upon  the 
mortgage,  on  the  ground  that  the  mortgaged  estate  was  of  less 
value  than  the  amount  of  the  debt.^  On  the  other  hand,  a 
mortgagee  cannot  be  made  the  absolute  owner  of  the  mort- 
gaged estate  against  his  will,  nor  until  after  he  shall  have 
duly  foreclosed  the  mortgagor's  right  of  redemption.^ 

1  Coniraonwealth  v.  Smith,  10  Allen,  448. 

2  Botham  v.  Mclntier,  19  Pick.  346  ;  White  v.  Rittenmyer,  30  Iowa,  268. 

3  Fletcher  v.  Carey,  103  Mass.  475. 

*  Lawrence  v.  Fletcher,  10  Met.  344  ;  Deraing  v.  Comings,  11  N.  H.  474  ; 
Batchelder  v.  Robinson,  6  N.  H.  12.     See  post,  §  1169. 

*  Dashwood  v.  Blythway,  1  Eq.  Cas.  Abr.  317  ;  Lockhart  v.  Hardy,  9  Beav. 
349.  And  see  Mass.  Pub.  Stat.  1881,  c.  181,  §  42  ;  Morse  v.  Merritt,  110  Mass. 
458. 

*  Goodwin  v.  Richardson,  11  Mass.  469  ;  Eaton  v.  Whiting,  3  Pick.  484. 


OP  THE  mortgagor's   INTEREST.  139 


CHAPTER  XL VI. 

MORTGAGES  —  OP   THE   MORTGAGOR'S   INTEREST. 

§  1088.  Mortgagor's  interest. 

1089.  Mortgage  revoking  will. 

1090.  Eiiuity  of  redemption  inheritable. 

1091.  Effect  of  performance  of  condition. 

1092.  Equity  of  redemption  may  be  mortgaged. 

1093.  Mortgagor's  estate  in  respect  to  strangers. 

1094.  Liability  for  debts  of  mortgagor. 

1095.  Liability  for  debts  of  mortgagor,  continued. 

1096.  Damages  upon  eminent  domain  and  tax  proceedings. 

1097.  When  a  mortgage  is  not  an  alienation. 

1098.  When  mortgagor  liable  for  rents. 

1099.  Curtesy  and  dower. 

1100.  Of  disseisin  affecting  mortgagee. 

1101.  Mortgagor's  rights  as  against  mortgagee. 

1102.  Mortgagor's  duty  to  protect  estate. 

1103.  Rights  and  remedies  of  mortgagor  upon  paying  mortgage-debt. 

1104.  Equity  of  redemption,  how  enforced. 

1105.  Constitutional  law. 

1106.  Effect  of  performance  of  condition. 

1107.  Effect  of  tender  after  condition  broken. 

1108.  Who  may  redeem. 

1109.  Whole  debt  must  be  paid. 

1110.  How  far  purchaser  of  equity  of  redemption  can  impeach  mortgage. 

1111.  Incidents  of  right  to  redeem. 

1112.  Enforcing  mortgage  for  larger  sum  than  then  due. 

1113.  Contribution  and  subrogation. 

1114.  Further  of  the  right  to  redeem. 

1115.  Parties  to  redemption  proceedings. 

1116.  Bill  to  redeem  must  make  tender. 

1117.  Redemption  barred  by  limitation. 

1118.  When  payment  presumed  from  lapse  of  time. 

1119.  Mortgage  survives  changes  in  form  of  debt. 

1120.  What  will  not  discharge  the  mortgage. 

1121.  Payment  and  discharge. 

§  1088.    Mortgagor's  Interest.  —  The  interest  of  a  mortgagor 
in  the  mortgaged  promises  will  be  found  to  be  much  more 

simple,  uniform,  and  well-defined,  both  in  law  and  equity, 


140  MORTGAGES. 

than  that  of  a  mortgagee.  At  one  time  it  was  held,  that, 
after  a  breach  of  the  condition  of  his  mortgage,  a  mortgagor 
had  a  mere  right  to  recover  back,  by  the  payment  of  the 
money  due,  the  estate  which  had  passed  out  of  him.  But  it 
is  now  settled  that  he  has  an  actual  estate,  which  he  may  de- 
vise or  grant,  though  he  holds  possession  and  receives  the 
profits  at  the  will  of  the  mortgagee,  who  may  evict  him  with- 
out notice.^  The  estate  of  the  mortgagor  in  the  lands  is  real 
property,  and  is  conveyed,  devised,  and  taken  upon  legal  pro- 
cess, as  such. 2 

§  1089.  Mortgage  revoking  Will.  —  A  mortgage  made  by 
the  owner  in  fee  will  not  operate  except  ^ro  tanto  to  revoke  a 
will  already  made,  whereby  the  same  land  has  been  previously 
devised,^  even  though  the  mortgage  be  to  the  devisee  himself.* 

§  1090.  Equity  of  Redemption  inheritable.  —  This  estate  of 
a  mortgagor  is  governed  by  the  same  rules,  as  to  its  devolu- 
tion by  descent  or  otherwise,  as  any  other  estate  in  lands; 
and  the  same  technical  forms  have  been  required  in  order  to 
make  a  valid  devise  of  an  equity  of  redemption,  as  of  land 
itself,  ever  since  the  time  of  Lord  Hardwicke  (1737).^  Thus, 
where  the  deed  contains  a  power  of  sale,  with  a  provision  that 
any  surplus,  after  satisfying  the  debt,  shall  be  paid  to  the 
mortgagor  or  his  executors,  etc.,  if  the  sale  is  made  in  the 
life  of  the  mortgagor,  the  surplus  goes  to  him  or  his  executors 
as  personal  estate;  if  not  till  after  his  death,  it  goes  to  his 
heir,  the  estate  having,  in  the  meantime,  become  the  heir's 
by  descent.^ 

§  1091.  Effect  of  Performance  of  Condition.  —  If  the  mort- 
gagor performs  the  condition  of  his  mortgage  according  to  its 
terms,  he  at  once  defeats  the  estate  of  the  mortgagee,  and  is 
in  of  his  original  estate,  without  any  further  act,  unless  his 
deed  requires  some  deed  of  release  from  the  mortgagee ;  and 

1  Co.  Lit.  205  a,  Butler's  note,  96  ;  Code,  Mortg.  23 ;  White  v.  "Whitney, 
3  Met.  81 ;  Laussat's  Fonbl.  Eq.  491,  n.  ;  Buchanan  v.  Monroe,  22  Tex.  537. 

2  White  V.  Rittenmyer,  30  Iowa,  268. 

8  Thorne  v.  Thorne,  1  Vern.  141  ;  Hall  v.  Dench,  id.  329  ;  Casborne  v.  Scarfe, 
1  Atk.  606  ;  McTaggart  v.  Thorn j)Son,  14  Penn.  St.  149  ;  Ledyard  v.  Butler, 
9  Paige,   132. 

*  Baxter  v.  Dyer,  5  Ves.  656. 

6  Chamberlain  v.  Thompson,  10  Conn.  243  ;  Coote,  Mortg.  26. 

6  Wright  V.  Eose,  2  Sim.  &  S.  323  ;  Bourne  v.  Bourne,  2  Hare,  35. 


OF   THE   mortgagor's   INTEREST.  141 

he  may  have  an  action  at  common  law  against  the  mortgagee, 
if  in  possession,  to  recover  the  land.  But  a  tender  afterwards 
docs  not.^ 

§  1092.  Equity  of  Redemption  may  be  mortgaged.  —  A  mort- 
gagor, SO  long  as  he  has  an  equity  of  redemption,  has  an 
estate  which  he  can  convey  in  mortgage  by  successive  deeds, 
which  will  take  precedence  according  to  their  order  in  time, 
where  the  subsequent  mortgagee  has  had  notice,  actual  or 
constructive,  of  the  prior  ones.^  Thus  where  one  made  three 
successive  mortgages,  in  the  first  of  which  was  a  power  of 
sale,  and  the  debtor's  equity  of  redemption  was  sold  upon 
execution.  The  first  mortgagee  having  sold  the  estate,  and 
a  surplus  remaining  after  satisfying  his  own  mortgage,  it  was 
held  that  the  purchaser  of  the  equity  could  claim  only  the 
surplus,  if  any,  of  this  excess,  after  the  second  and  third 
mortgages  had  been  satisfied  in  full.^ 

§  1093.  Mortgagor's  Estate  in  Respect  to  Strangers.  —  Even 
in  those  States  which  hold  to  the  common  law  theory  of  mort- 
gages, the  mortgagor's  estate  is  a  complete  legal  estate,  with 
all  its  incidents,  as  to  all  the  world  but  the  mortgagee  and 
those  claiming  under  him.^  It  has  accordingly  been  held  that 
a  mortgagor  may  sue  for  and  recover  the  mortgaged  land 
against  a  stranger.  And  no  objection  can  be  interposed  that 
a  third  person  holds  a  mortgage  on  the  same,  the  condition 
of  which  has  been  broken."     It  is  accordingly  liable  for  the 

^  Holman  v.  Bailey,  3  Met.  55  ;  Erskine  v.  Townsend,  2  Mass.  493  ;  Grover  v. 
riye,  5  Allen,  543 ;  Currier  v.  Gale,  9  Allen,  522  ;  Maynard  v.  Hunt,  5  Pick.  240  ; 
Shields  v.  Lozear,  34  N.  J.  496  ;  Stewart  v.  Crosby,  50  Me.  130.  See  aate,  §  1044  ; 
post,  §  1107,  however,  as  to  the  effect  of  payment  after  the  law  day. 

2  Coote,  Mortg.  34  ;  Bigelow  v.  Willsou,  1  Pick.  485  ;  Newall  v.  "Wright,  3  :Ma.ss. 
138. 

8  Andrews  v.  Fiske,  101  llass.  422. 

4  Blaney  v.  Bearce,  2  Me,  132  ;  Wilkins  v.  French,  20  Me.  Ill  ;  Groton  v. 
Boxborough,  6  Mass.  50;  Felch  v.  Taylor,  13  Pick.  133;  Bradley  r.  Fuller,  23 
Pick.  1  ;  White  v.  Whitney,  3  Met.  81  ;  On-  v.  Hadley,  36  ^'.  H.  575  ;  Willing, 
ton  V.  Gale,  7  Mass.  138  ;  Punderson  ;;.  Brown,  1  Day,  93  ;  Clark  v.  Beach, 
6  Conn.  142;  Cooper  w.  Davis,  15  Conn.  556;  Schuylkill  Co.  v.  Tlioburn,  7  S.  & 
R.  411 ;  Asay  v.  Hoover,  5  Penn.  St.  21  ;  Waters  v.  Stewart,  1  Caines,  Cas.  47  ; 
Hitchcock  V.  Harrington,  6  Johns.  290. 

^  Woods  V.  Hilderbrand,  46  Mo.  284;  post,  §  1097.  So  a  prior  mortgage  is  no 
bar  to  ejectment  by  a  second  mortgagee  against  the  mortgagor.  Savage  v.  Dooley, 
28  Conn.  411, 


142  MORTGAGES. 

mortgagor's  debts  ;^  and  if  levied  upon  and  sold  on  execution, 
the  purchaser  may  have  trespass  against  him  for  acts  done  by 
him  subsequently  upon  the  ])remises,  unless  the  mortgagee 
shall  at  the  time  be  in  possession.''^ 

§  1094.  Liability  for  Debts  of  Mortgagor.  —  In  Massachusetts, 
after  such  a  levy  and  sale,  the  mortgagor  still  has  a  right  to 
redeem  the  equity  of  redemption,  and  thereby  restore  himself 
to  the  right  to  redeem  the  estate  from  the  mortgage.  And 
this  right  he  may  mortgage,  and  the  right  in  equity  to  redeem 
the  prior  right  from  the  second  mortgagee  may  be  levied  upon 
as  his  estate.^  If  a  judgment  becomes  a  lien  upon  an  equity 
of  redemption,  by  attachment  or  otherwise,  and  the  mortgage 
is  discharged,  it  attaches  to  the  land  itself.*  A  mortgagee 
may  not,  however,  sue  the  note  which  is  secured  by  a  mort- 
gage, and  levy  his  execution  upon  the  maker's  right  in  equity 
to  redeem  the  estate  from  the  same  mortgage.^  But  if  such 
note  has  been  bona  fide  sold  and  indorsed  to  a  stranger  by  the 
mortgagee,  without  assigning  the  mortgage,  the  purchaser 
may  sue  the  mortgagor  and  levy  upon  his  equity  of  redemp- 
tion.^ And  in  Maine  and  several  other  States  the  mortgagee 
himself  may  sue  the  mortgage-debt,  and  levy  upon  mort- 
gagor's equity  of  redemption  to  satisfy  it.^     But  now  in  New 

1  Trimm  v.  Marsh,  54  N.  Y.  599,  even  after  the  mortgagee  has  entered  into 
possession  after  condition  broken. 

'■i  White  V.  Whitney,  3  Met.  81  ;  Fernald  v.  Linscott,  6  Me.  234 ;  Fox  v.  Hard- 
ing, 21  Me.  104. 

3  Reed  v.  Bigelow,  5  Pick.  281. 

*  McCormick  v.  Digby,  8  Blackf.  99  ;  Freeman  v.  McGaw,  15  Pick.-  82. 

^  Lyster  v.  Dolland,  1  Ves.  Jr.  431  ;  Atkins  v.  Sawyer,  1  Pick.  351  ;  Camp  v. 
Coxe,  1  Dev.  &  B.  52  ;  Deaver  v.  Parker,  2  Ired.  Eq.  40  ;  Washburn  v.  Goodwin, 
17  Pick.  137  ;  Goring  v.  Shreve,  7  Dana,  64  ;  Waller  v.  Tate,  4  B.  Mon.  529  ; 
Powell  V.  Williams,  14  Ala.  476  ;  Barker  v.  Bell,  37  Ala.  358  ;  Boswell  v.  Carlisle, 
55  Ala.  554  ;  Buck  v.  Sherman,  2  Doug.  (Mich.)  176  ;  Hill  v.  Smith,  2  McLean, 
445  ;  Thornton  v.  Pigg,  24  Mo.  249 ;  Young  v.  Kuth,  55  Mo.  515. 

6  Crane  v.  March,  4  Pick.  131  ;  Waller  v.  Tate,  4  B.  Mon.  529  ;  Andrews  v. 
Fiske,  101  Mass.  422. 

">  Crooker  v.  Frazier,  52  Me.  405  ;  Porter  v.  King,  1  Me.  297.  So  Freeby  v. 
Tupper,  15  Ohio,  467  ;  Fosdick  v.  Eisk,  id.  84;  Hollister  v.  Dillon,  4  Ohio  St. 
197  ;  Youse  v.  McCreary,  2  Blackf.  243.  But  in  these  cases  the  execution  pur- 
chaser takes  free  of  the  mortgage.  Ibid.  In  New  Jersey  and  Arkansas,  however, 
the  mortgagee  can  levy  on  the  equity  of  redemption,  and  the  mortgage  debt  is 
only  reduced  pro  tanto.  Deare  v.  Carr,  3  N.  J.  Eq.  513  ;  Rice  v.  "Wilburn,  31  Ark. 
108.     In  Illinois,  also,  the  statute  holding  the  mortgagor's  estate  liable  to  execu- 


OF   THE   mortgagor's   INTEREST.  143 

York,  North  Carolina,  and  Indiana,  by  statute,  a  mortgagee 
may  not  sell  the  equity  of  redemption  of  his  mortgagor  on  a 
judgment  recovered  upon  the  mortgage-debt.  ^  It  is  upon  the 
principle  above  stated,  that  where  the  principal  in  a  note 
procured  another  to  be  his  surety,  and  gave  him  a  mortgage 
as  collateral  security  therefor,  the  payee  of  the  note  was  not 
at  liberty  to  sue  on  the  note,  and  levy  upon  the  principal's 
equity  of  redemption.^  But  where  the  mortgagor  made  a  sec- 
ond mortgage  of  the  estate,  including  also  other  land,  the 
first  mortgagee  was  held  authorized  to  sue  his  mortgage-debt, 
and  levy  his  execution  upon  the  debtor's  right  to  redeem  from 
the  second  mortgage.^  One  ground  upon  which  the  court  in 
Atkins  V.  Sawyer^  denied  the  right  in  the  mortgagee  to  sue 
the  mortgage-debt  and  levy  upon  the  equity  of  redemption 
was,  that  there  arises  an  implied  contract  on  the  part  of  the 
mortgagee  with  the  mortgagor,  that,  as  to  that  land,  he  would 
give  him  the  ordinary  time  of  redemption,  Avhich  he  ought 
not  to  be  at  liberty  to  curtail  by  selling  the  mortgagor's  right 
to  redeem;  but  that  no  such  implied  contract  exists  in  respect 
to  the  equity  of  redemption  from  a  second  mortgage  made  to 
a  third  party. 

§  1095.  Liability  for  Debts  of  Mortgagor,  continued.  — This 
right  of  levying  upon  a  debtor's  equity  of  redemption  did  not 
exist  at  common  law,  because,  as  has  been  before  stated,  that 
equity  was  not  originally  regarded  as  an  estate.^  But  in  the 
United  States,  equities  of  redemption  have,  as  to  their  being 
subject  to  debts,  generally  been  placed  on  the  same  ground  as 
legal  estates,  though  such  is  not  the  case  in  some  of  the  States. 

tion  is  construed  to  include  execution  for  the  mortgage  debt.  Cottingham  v. 
Springer,  88  111.  90. 

1  Code  Civ.  Proc.  1882,  §  1432  ;  Palmer  v.  Foote,  7  Paige,  437  ;  Tice  v.  Annin, 
2  Johns.  Ch.  125  ;  Ind.  Aunot.  Stat.  1894,  §  1115;  N.  Carolina,  Code,  Eem.  Just. 
1876,  §  1432.  The  law  was  formerly  otherwise  in  New  York.  Jackson  v.  Hull, 
10  Johns.  481.  And  in  North  Carolina  the  same  restriction  does  not  apply  against 
selling  for  a  debt  secured  by  other  lien  than  mortgage.  Rollins  v.  Henrv,  86  N.  C. 
714. 

2  Bronston  v.  Robinson,  4  B.  Mon.  142. 

3  Johnson  v.  Stevens,  7  Cusli.  431. 
*  1  Pick.  351. 

5  Plunket  V.  Penson,  2  Atk.  290  ;  Forth  v.  Norfolk,  4  Madd.  503  ;  1  Sand. 
Uses,  275. 


144  MORTGAGES. 

Thus,  in  applying  the  law  of  Maryland,  the  United  States  court 
held  to  the  rule  of  the  common  law  that  an  equity  of  redemp- 
tion  could  not  be  taken  in  execution,  while  in  New  York, 
Connecticut,  and  others  of  the  States,  it  is  treated  as  a  com- 
mon law  right.  1 

§  1096.  Damages  upon  Eminent  Domain  and  Tax  Proceed- 
ings. —  In  Massachusetts  and  Connecticut,  if  land  under  a 
mortgage  is  taken  by  a  railroad  company  or  a  city,  in  the 
exercise  of  the  right  of  eminent  domain,  the  mortgagor,  if  in 
possession,  may  claim  the  damages  for  such  taking.^  But  in 
New  York  and  Maine  the  mortgagee  may  claim  them.^  Upon 
the  same  principle,  where  the  value  of  mortgaged  premises 
depended  upon  the  privilege  of  drawing  water  for  the  use  of 
a  mill  thereon  from  a  public  canal,  and  this  having  been 
changed  by  the  State,  with  provision  for  making  compensa- 
tion to  persons  thereby  injured,  it  was  held  that  the  mort- 
gagee, in  this  case,  might  claim  the  damages,  if  the  estate 
was  insufficient  without  them  to  satisfy  the  mortgage-debt.* 
But  in  Massachusetts  a  mortgagor  in  possession  may  main- 
tain a  complaint  and  recover  damages  for  flowing  his  land 
under  the  mill  acts.^  But  so  far  as  notice  is  required  to  be 
given  to  the  owner  of  land  of  the  intended  location  of  a  high- 
way across  it,^  or  notice  to  repair  the  street  in  front  of  it,'^  or 
of  a  petition  to  enforce  a  mechanic's  lien  upon  it,^  the  mort- 
gagor, if  in  possession,  is  deemed  the  owner.  So  taxes  upon 
lands  under  mortgage,  and  which  constitute  a  lien  upon  the 
same,  are  assessed  to  the  mortgagor  if  in  possession,  and  the 

J  "Van  Kess  v.  Hj'att,  13  Pet.  294  ;  Jackson  v.  Willard,  4  Johns.  41 ;  Punder- 
Ron  V.  Brown,  1  Day,  93.  In  South  Carolina  and  other  States  it  is  made  subject 
to  execution  by  statute.     State  v.  Laval,  4  McCord,  336. 

2  Breed  v.  East.  R.  R.,  5  Gray,  470,  n.  ;  Farnsworth  v.  Boston,  126  Mass.  1  ; 
Isele  V.  Schwamb,  131  Mass.  337,  341  ;  Whiting  v.  New  Haven,  45  Coun.  303. 
But  this  is  now  altered  in  Massachusetts  by  statute  as  regards  taking  by  railroads. 
Pub.  Stat.  c.  112,  §§  108,  109. 

8  Astor  V.  Hoyt,  5  Wend.  603;  Wilson  v.  Eur.  &  N.  A.  R.  R.,  67  Me. 
358. 

*  Auburn  Bk.  v.  Roberts,  44  N.  Y.  192,  202. 

6  Paine  v.  Woods,  108  Mass.  160. 

6  Parish  v.  Gilmanton,  11  "NT.  H.  293.     See  Wright  r.  Tukey,  3  Push.  290. 

7  Norwich  v.  Hubbai'd,  22  Conn.  587.     See  Mills  v.  Shepard,  30  Cona.  98. 

8  Howard  v.  Robinson,  5  Cash.  119. 


OP   TUE   mortgagor's   INTEREST.  145 

notices  nnd  proceedings  requisite  to  enforce  their  payment  by 
sale  are  to  and  with  the  mortgagor  as  owner. ^ 

§  1097.  When  a  Mortgage  is  not  an  Alienation.  —  By  the 
provisions  of  policies  of  insurance  in  mutual  lire-insurance 
companies,  there  is  generally  inserted  a  clause  whereby  an 
alienation  of  the  estate  by  the  insured,  with  certain  excep- 
tions, will  avoid  the  policy.  But  it  has  been  held,  that  a 
mortgage  is  not  such  an  alienation  as  will  avoid  it.^  So  it 
was  held  that  a  mortgage  was  not  an  alienation  when  applied 
to  a  contract  giving  another  the  right  of  pre-emption. ^  So  in 
an  action  of  ejectment  brought  by  a  mortgagor,  it  is  no  de- 
fence that  the  title  to  the  premises  is  in  a  third  person  as 
mortgagee,  if  the  tenant  do  not  hold  under  such  mortgagee.* 
Yet  when  a  mill-owner  flowed  mortgaged  lands  which  were 
in  the  possession  of  the  mortgagor,  who  released  the  damages 
to  the  mill-owner,  it  was  held  not  to  bind  the  mortgagee  in 
respect  to  damages  accruing  after  he  took  possession  under 
his  mortgage.^  Nor  could  the  mortgagor  of  an  undivided 
share  of  real  estate  bind  his  mortgagee  by  any  deed  of  parti- 
tion made  between  the  mortgagor  and  his  co-tenant.^ 

§  1098.  When  Mortgagor  liable  for  Rents.  —  The  mortgagor 
cannot  be  charged  with  rents  of  the  premises  before  the  mort- 
gagee shall  have  obtained  actual  possession,  even  though  the 
premises  are  an  inadequate  security  for  the  debt;   and  this 

1  Parker  v.  Baxter,  2  Gray,  185  ;  Mass.  Pub.  Stat.  1881,  ch.  11,  §  13;  Kalston 
;;.  Hughes,  13  111.  469  ;  Coombs  v.  Warren,  34  Me.  89  ;  Frye  v.  Illinois  Bk.,  11  111. 
3G7  ;  Kortright  v.  Cady,  23  Barb.  490.  Bnt  this  is  now  altered  in  Massachusetts 
by  statute,  Pub.  Stat.  1881,  c.  11,  §§  14-16  ;  and  the  mortgagee's  interest,  if 
definite,  is  separately  assessed. 

2  Jackson  v.  Mass.  Ins.  Co.,  23  Pick.  418  ;  Conover  v.  Mat.  Ins.  Co.,  3  Denio, 
254;  Rice  v.  Tower,  1  Gray,  426  ;  Pollard  v.  Somerset  Ins.  Co.,  42  Me.  221; 
Smith  V.  Monmouth  Ins.  Co.,  50  Me.  96 ;  Comm.  Ins.  Co.  v.  Spankneble,  52  111. 
53 ;  Judge  v.  Conn.  F.  I.  Co. ,  132  Mass.  521.  In  Shepherd  v.  Union  I.  Co.,  38 
N.  H.  232,  even  a  proviso  against  "alienation  by  mortgage"  was  held  only  to 
apply  to  a  mortgage  when  foreclosed.  See  also  Harral  v.  Leverty,  50  Conn.  46,  and 
cases  cited. 

3  Lovering  v.  Fogg,  18  Pick.  540. 

*  Den  V.  Dimon,  10  N.  J.  156  ;  Ellison  v.  Daniels,  11  N.  H.  274  ;  Savage  v, 
Dooley,  28  Conn.  411  ;  Brown  v.  Snell,  6  Fla.  741.  The  contrary  was  held  after 
forfeiture  by  mortgagor  in  Meyer  v.  Campbell,  12  Mo.  603,  the  mortgagee  there 
being  regarded  as  seised  of  the  legal  estate. 

5  Ballard  v.  Ballard  Vale  Co.,  5  Gray,  468. 

6  Colton  V.  Smith,  11  Pick.  311. 
VOL.   II.  — 10 


146  MORTGAGES. 

extends  to  a  grantee  of  the  mortgagor,  and  includes  rents 
accruing  after  the  commencement  of  process  to  obtain  posses- 
sion.^ If  the  mortgagee  suffer  the  mortgagor  to  retain  pos- 
session, and  he  commit  acts  which  tend  to  deteriorate  the 
premises,  and  then  sell  to  a  stranger,  the  latter  will  not  be 
accountable  for  any  part  of  the  debt  beyond  what  the  premises 
may  be  sold  for  by  order  of  the  court.  On  the  other  hand,  if 
the  mortgagor  or  one  standing  in  his  place  enhance  the  value 
of  the  premises  by  improvements,  these  become  additional 
security  for  the  debt,  and  he  can  only  claim  the  surplus,  if 
any,  upon  such  sale  being  made,  after  satisfying  the  debt;^ 
and  cannot,  in  a  suit  by  the  mortgagee  for  possession,  claim 
any  abatement  on  account  of  these;  the  only  way  in  which 
he  can  avail  himself  of  them  is  by  redeeming  the  estate. ^  So 
if  the  mortgagor  plant  trees  for  nursery  purposes,  they  become 
a  part  of  the  mortgaged  estate,  though  intended  for  sale  in 
market,  and  belong  to  the  mortgagee,  nor  has  the  mortgagor 
a  right  to  remove  them.*  And  where  one  partner  owned  land, 
and  the  partnership  erected  fixtures  upon  it  while  it  was  under 
mortgage  by  the  owner,  it  was  held  that  the  mortgage  attached 
•to  the  fixtures  as  a  part  of  the  realty,  and  held  them.^ 

§  1099.  Curtesy  and  Dower.  —  Among  the  incidents  of  a 
mortgagor's  estate  are  those  of  curtesy  and  of  dower.  Where 
the  estate  has  been  sold  and  turned  into  money  to  satisfy  the 
mortgage-debt,  equity  gives  dower  out  of  the  surplus.^ 

§  1100.  Of  Disseisin  affecting  Mortgagee.  —  So  far  as  the 
entire  inheritance  of  the  estate  is  concerned,  there  is  but  one 
title,  and  this  is  shared  between  the  mortgagor  and  mort- 
gagee, their  respective  parts  when  united   constituting   one 

1  Coote,  Mortg.  325  ;  Fitchburg  Co.  v.  Melvin,  15  Mass.  268  ;  Gibson  v.  Far- 
ley, 16  Mass.  280  ;  Boston  Bk.  v.  Reed,  8  Pick.  459  ;  Wilder  v.  Houghton,  1  Pick. 
87  ;  Mayo  v.  Fletcher,  14  Pick.  525  ;  Clarke  v.  Curtis,  1  Gratt.  289  ;  Hughes  v. 
Edwards,  9  Wheat.  489  ;  Syracuse  Bk.  v.  Tallman,  31  Barb.  201  ;  Whitney  v. 
Allen,  21  Cal.  233 ;  Walker  v.  King,  44  Vt.  601. 

2  Hughes  V.  Edwards,  9  Wheat.  489,  500. 

3  Haven  v.  Adams,  8  Allen,  363  ;  Same  v.  Bost.  &  W.  R.  R.,  id.  369. 

4  Maples  V.  Millon,  31  Conn.  598. 

^  Lynde  v.  Rowe,  12  Allen,  100  ;  Phila.,  etc.  R.  R.  v.  Woelpper,  64  Penn.  St. 
366,  372. 

s  Titus  V.  Neilson,  5  Johns.  Ch.  452 ;  Matthews  v.  Durjee,  45  Barb.  69  ;  ante, 
§§  377,  479,  481. 


OF   THE   mortgagor's   INTEREST,  1-17 

title.  The  mortgagor's  possession  is  so  far  that  of  the  mort- 
gagee that  he  cannot  disseise  him.  But  in  Mississippi  the 
courts  hold,  upon  the  question  of  limitations,  that,  from  the 
time  of  forfeiture  of  the  mortgagor's  estate  by  a  breach  of 
condition,  his  possession  is,  as  to  the  mortgagee,  adverse, 
and  the  statute  begins  to  run  from  that  date.^  He  cannot 
make  any  lease  or  conveyance  which  can  bind  the  mortgagee 
or  prejudice  his  title.^  If  the  mortgagor  in  possession  is  dis- 
seised by  a  stranger,  the  mortgagee  thereby  loses  his  seisin."^ 
So  if  the  mortgagee  is  disseised,  he  cannot  convey  his  inter- 
est in  the  estate.*  And  if  one  of  two  tenants  in  common 
mortgage  his  share  to  his  co-tenant,  he  cannot  have  partition 
against  him,  since  in  respect  to  his  co-tenant  he  has  not  suffi- 
cient seisin  to  maintain  partition  against  his  own  mortgagee.^ 
The  distinction  is  this :  Between  the  mortgagor  and  mort- 
gagee, so  long  as  the  latter  does  not  treat  the  former  as  a 
trespasser,  the  possession  of  the  mortgagor  is  not  hostile  to 
or  inconsistent  with  the  mortgagee's  right.  The  possession 
of  the  mortgagor  is,  to  this  extent,  the  possession  of  the  mort- 
gagee.^    But  neither  the  mortgagor  nor  purchaser  of  his  right 

1  Wilkinson  v.  Flowers,  37  Miss.  579,  585.  So  Jamison  v.  Perry,  33  Iowa,  14. 
But  the  generally  prevailing  rule  is  otherwise,  and  re(|uires  some  distinct  assertion 
of  a  hostile  title.  Rockwell  v.  Servant,  63  111.  424  ;  Martin  v.  Jackson,  27  Penu. 
St.  504  ;  Parker  v.  Banks,  79  N.  C.  480. 

2  Birch  V.  Wright,  1  T.  R,  383  ;  Cholmondeley  v.  Clinton,  2  Meriv.  171,  360  ; 
s.  c.  2  Jac.  &  W.  177;  Noyes  v.  Sturdi\rant,  18  Me.  104;  Gould  v.  Newman, 
6  Mass.  239;  Perkins  y.  Pitts,  11  Mass.  125;  Hicks  y.  Brighara,  id.  300;  Colton 
r.  Smith,  11  Pick.  311;  Dexter  u.  Arnold,  2  Sumn.  108;  Newman  v.  Chapman, 
2  Rand.  93. 

8  Poignand  v.  Smith,  8  Pick.  272. 

*  Dadmun  v.  Lamson,  9  Allen,  85.     See  Lincoln  v.  Emerson,  108  Mass.  87. 

5  Bradley  v.  Fuller,  23  Pick.  1.  But  if  he  mortgage  it  to  a  stranger,  and  then 
make  partition  with  his  co-tenant  by  mutual  releases,  in  which  the  mortgagee 
joins,  it  throws  the  entire  mortgage  upon  the  share  of  the  mortgagor,  and  relieves 
the  other  share.  Torrey  v.  Cook,  116  Mass.  163.  On  the  other  hand,  a  mort- 
gagee in  possession  of  undivided  land  before  foreclosvire  would  not  be  liable  to  a 
process  of  partition  in  favor  of  a  mortgagor  who  owns,  or  is  in  possession  of,  the 
other  undivided  share  of  the  estate,  because  the  mortgage  does  not  give  an  absolute 
title.     Norcrosa  v.  Norcross,  105  Mass.  265. 

6  Doe  V.  Barton,  11  Ad.  &  E.  307  ;  Partridge  v.  Bere,  5  B.  &  A.  604;  Joyner 
V.  Vincent,  4  Dev.  &  B.  512;  Smartle  v.  Williams,  1  Salk.  245;  Hunt  v.  Hunt, 
14  Pick.  374  ;  Root  v.  Bancroft,  10  Met.  44;  Nichols  v.  Reynolds,  1  R.  I.  30; 
Herbert  v.  Haurick,  16  Ala.  581 ;  Newman  v.  Chapman,  2  Rand.  93  ;  Boyd  v. 
Beck,  29  Ala.  703. 


148  MORTGAGES. 

under  a  sheriff's  sale  can  maintain  ejectment  against  the 
mortgagee  in  possession.  All  he  can  do  is  to  redeem  by 
paying  the  mortgage.  Such  purchaser  may  have  ejectment 
against  the  mortgagor  in  possession. ^  The  possession  of  the 
mortgagor  is  that  of  the  mortgagee,  so  as  to  prevent  a  stranger 
setting  up  a  title  by  possession  against  the  mortgagee,  so  long 
as  the  mortgagor  is  seised. ^ 

§  1101.  Mortgagor's  Rights  as  against  Mortgagee.  —  The 
mortgagee,  by  accepting  a  deed  from  his  mortgagor,  assents 
to  and  cannot  deny  the  mortgagor's  title. ^  If  one  enters  into 
possession  as  mortgagee  under  his  mortgage,  he  will  not  be 
admitted  to  deny  the  title  of  his  mortgagor,  and  any  releases 
which  he  may  obtain  from  others  will  go  to  strengthen  his 
mortgagor's  title.*  But  yet  their  rights,  even  in  the  matter 
of  possession  of  the  premises,  are  so  independent  and  dis- 
tinct, that  if  either,  while  in  possession,  or  any  one  claiming 
under  him,  commits  waste  by  acts  which  essentially  impair 
the  value  of  the  inheritance,  the  other  may  restrain  him  from 
so  doing  by  an  injunction  through  a  court  of  chancery.^  And 
as  an  illustration  of  the  distinct  interests  which  a  mortgagor 
and  mortgagee  may  have,  even  in  an  incident  of  the  mort- 
gaged estate,  it  is  held,  that  either  may  avail  himself  of  a 
covenant  of  warranty  made  to  the  mortgagor,  or  the  one  under 
whom  he  claims,  as  the  same  runs  with  the  land,  and  avails 
whichever  of  the  parties  has  occasion  to  resort  to  it.^  But  if 
the  mortgagee  be  in  possession,  the  mortgagor  cannot  sustain 

1  Doe  V.  Tunnell,  1  Honst.  320. 

2  Sheafe  v.  Gerry,  18  N.  H.  245. 

8  Brown  v.  Combs,  29  N.  J.  36,  42. 

*  Farmers'  Bk.  v.  Brouson,  14  Mich.  361. 

5  Wms.  Real  Prop.  355,  note  ;  2  Crabb,  Real  Prop.  862  ;  id.  874  ;  Fay  v. 
Brewer,  3  Pick.  203  ;  Smith  v.  Moore,  11  N.  H.  55  ;  Irwin  v.  Davidson,  3  Ired. 
E(|.  311 ;  Brady  v.  Waldron,  2  Johns.  Ch.  148;  Cooper  v.  Davis,  15  Conn.  556  ; 
Givens  v.  M'Cahnont,  4  Watts,  460. 

^  White  V.  Whitney,  3  Met.  81.  It  is,  however,  otherwise  hehi  in  England 
and  Kentucky,  and  that  the  legal  estate  is  so  far  in  the  mortgagee  as  to  attach  to 
it  exclusively  the  covenants  which  run  with  the  laud.  Rawle,  Gov.  360-362  ; 
Carlisle  v.  Blamire,  8  East,  487 ;  Pargeter  v.  Harris,  7  Q.  B.  708  ;  McGoodwin  v. 
Stephenson,  11  B.  Mou.  21.  In  New  Hampshire,  a  second  mortgagee  was  held 
entitled  to  rent  of  the  mortgaged  premises  accruing  from  a  lessee  after  entry  made, 
although  there  was  an  outstanding  mortgage  prior  to  his.  Cavis  v.  McClary, 
5  N.  H.  529. 


OF   THE   mortgagor's   INTEREST.  149 

trespass  against  a  stranger  for  entering  and  going  across 
the  premises,  if  he  do  no  permanent  injury  to  the  soil  and 
freehold.^ 

§  1102.  Mortgagor's  Duty  to  protect  the  Estate.  —  Still  there 
is  the  relation  of  tenure  between  the  mortgagor  and  mort- 
gagee, as  the  former  holds  of  the  latter;  and  the  doctrine 
which  forbids  any  one  to  controvert  the  title  under  whicli  he 
holds  an  estate  will  not  admit  the  former  to  dispute  the  title 
of  the  latter.  Nor  may  he  defeat  a  solemn  deed  whereby  he 
has  created  the  mortgagee's  title ;  and,  consequently,  he  will 
not  be  admitted  to  set  up  a  title  in  a  third  person,  such  as  a 
lease  made  prior  to  the  mortgage,  in  an  action  by  the  mort- 
gagee to  enforce  his  mortgage. ^  And  his  grantee  is  in  like 
manner  estopped  by  the  recital  of  the  mortgage  in  his  deed.^ 
Nor  can  the  mortgagor,  or  his  grantee  or  subsequent  mortgagee, 
buy  in  a  tax  title  and  set  it  up  against  the  mortgagee.*  A 
mortgagee,  however,  may  purchase  in  an  outstanding  prior 
judgment  title,  and  hold  under  it  as  being  paramount  to  his 
mortgage  title,^  and  he  may  buy  a  tax  title,  provided  he  is 
out  of  possession  or  is  otherwise  under  no  obligation  to  pay 
the  tax.^ 

§  1103.  What  are  the  Rights  and  Remedies  of  a  Mortgagor, 
upon  paying  the  Mortgage-debt,  to  recover  possession  of  the 
mortgaged  premises  from  the  mortgagee,  who  has  previously 
entered  for  condition  broken,  were  considered  while  discuss- 
ing the  rights  of  mortgagees.'^  It  is  sufficient  here  to  say, 
that  in  many  States  his  remedy  is  only  in  equity.  He  could 
not  sue  the  mortgagee  at  common  law  to  recover  possession.^ 

1  Sparhawk  v.  Bagg,  16  Gray,  583. 

2  2  Crabb,  Real  Prop.  861 ;  Miami  Ex.  Co.  v.  U.  S.  Bk.,  etc.,  Wright  (Ohio), 
249 ;  Doe  v.  Pegge,  1  T.  R.  758,  n.  ;  Hall  v.  Surtees,  5  B.  &  A.  687  ;  Clark  v. 
Baker,  14  Cal.  612 ;  Conner  v.  Whitmore,  52  Me.  185. 

8  Johnson  v.  Thompson,  129  Mass.  398. 

*  Woodbury  v.  Swan,  59  N.  H.  22 ;  Kezer  v.  Clifford,  id.  208  ;  Dayton  v.  Rice, 
47  Iowa,  429 ;  Fuller  v.  Hodgdon,  25  Me.  243  ;  Smith  t;.  Lewis,  20  Wis.  350  ;  Midd. 
Sav.  Bk.  V.  Bacharach,  46  Conn.  513  ;  Jordan  v.  Sayre,  29  Fla.  100  ;  s.  r.  10  So. 
Rep.  823  ;  Gorton  v.  Paine,  18  Fla.  117. 

6  Walthall  V.  Rives,  34  Ala.  91 ;  Wright  v.  Sperry,  25  Wis.  617  ;  Harrison  v. 
Roberts,  6  Fla.  711. 

6  Spratt  V.  Price,  18  Fla.  289. 

7  Ante,  §  1061. 

8  Coote,  Mortg.  528  ;  4  Kent,  Com.   163 ;  Parsons  v.   Welles,  17  Mass.  419  ; 


150  MORTGAGES. 

And  the  Supreme  Court  of  the  United  States  hold  this  to  be 
the  common  law  doctrine  upon  the  subject;  and  one  re'ason 
given  for  it  as  a  rule  is,  that  if  the  mortgagee  have  been  in 
possession  of  the  premises,  and  made  improvements,  he  could 
not  otherwise  hold  for  such  improvements  if  the  mortgagor, 
by  tendering  the  debt,  could  recover  in  ejectment.  If  he 
sues  in  equity  to  redeem  his  estate,  he  must  do  equity  before 
he  can  obtain  a  decree  for  possession.  ^  In  other  States,  he 
is  remitted  to  his  legal  rights  as  soon  as  he  shall  have  paid 
the  debt,  and  may  recover  possession  in  an  action  against  his 
mortgagee.  2 

§  1104.  Equity  of  Redemption,  how  enforced,  —  This  right 
which  a  mortgagor  has  to  regain  his  estate  discharged  of  any 
claim  of  the  mortgagee,  by  performing  the  condition  of  the 
mortgage  after  the  time  fixed  by  the  terms  of  his  deed,  is 
commonly  called  his  equity  of  redemption.  The  remedy  by 
which  he  enforces  this  right,  in  the  former  class  of  States, 
is  by  a  bill  in  equity  alone,  and  not  by  a  suit  at  law,  even  if 
the  debt  may  have  been  paid;^  and  if  the  mortgagee  be  in 
possession,  after  breach,  the  mortgagor,  in  some  of  the  latter 
class  of  States,  also  is  driven  to  a  process  in  equity  to  regain 
it,  although  the  mortgage  may  have  been  satisfied.* 

§  1105.  Constitutional  Law.  —  It  is  competent  for  the  legis- 
lature to  extend  the  right  of  redemption  on  the  sale  of  mort- 
gaged premises  beyond  the  limit  existing  at  the  time  the 
contract  was  made.  But  a  law  prohibiting  the  cyeditor  from 
selling  at  all,  or  from  obtaining  possession,  in  any  manner, 
of  the  premises  upon  which  he  holds  a  mortgage  lien,  would 
be  void,  as  being  unconstitutional.^ 

§  1106.  Effect  of  Performance  of  the  Condition.  —  When, 
however,  the  mortgagor  has  performed  the  condition  of  his 

Howe  V.  Lewis,  14  Pick.  329  ;  Wilson  v.  Ring,  40  Me.  116  ;  N.  E.  Jeweky  Co. 
V.  Merriam,  2  Allen,  390.     See,  however,  Baker  v.  Gavitt,  128  Mass.  93. 

^  Brobst  V.  Brock,  10  Wall.  519,  536,  a  case  arising  in  Pennsylvania. 

2  Jackson  i\  Davis,  18  Johns.  7  ;  Jackson  v.  Crafts,  id.  110  ;  Dean  v.  Spin- 
ning, 6  N.  J.  466  ;  Morgan  v.  Davis,  2  Har.  &  McH.  9 ;  Holt  v.  Eees,  44  HI. 
30  ;  ante,  §  1046. 

8  Pearce  v.  Savage,  45  Me.  90  ;  Pratt  v.  Skolfield,  id.  386  ;  Kenyon  v.  Shreck, 
52  HI.  382. 

*  Stewart  v.  Crosby,  50  Me.  130,  133  ;  Dyer  v.  Toothaker,  51  Me.  380. 

5  Tillotaon  v.  Millard,  7  Minn.  513,  521. 


OF  THE  mortgagor's  interest.  151 

mortgage,  he  has  no  occasion,  in  England  or  in  this  country, 
to  resort  to  equity.  By  such  performance  the  estate  of  the 
mortgagee  is  at  once  defeated ;  and  if  he  is  in  possession  of 
the  premises,  the  mortgagor  may  have  ejectment  against  him 
to  recover  the  same. ^  And  a  tender  of  performance  before 
condition  broken  has  the  same  effect  in  defeating  the  estate 
of  the  mortgagee  as  performance  itself  would  have  had.^ 

§  1107.  Effect  of  Tender  after  Condition  broken.  —  What 
would  be  the  effect  of  a  tender  after  condition  broken  has 
been  variously  held  by  different  courts.  It  was  early  held  in 
New  York,  that  it  would  discharge  the  mortgage  lien;  and 
this  was  followed  in  New  Hampshire.  The  question  came  up 
in  several  forms  in  New  York  afterwards,  and  it  was  held  not 
to  be  a  discharge.  But  in  the  latest  case  cited  below,  the 
question  is  revised  and  finally  settled  in  favor  of  its  operat- 
ing to  discharge  the  lien.^  Such  is  the  case  in  Michigan, 
and  a  tender  of  the  debt  due,  at  any  time  before  foreclosure, 
discharges  the  lien  on  the  land,  though  it  does  not  satisfj 
the  debt,  and  a  tender  of  United  States  legal-tender  notes 
was  held  sufficient.^  [But  the  law  is  generally  in  the  United 
States,  that  w^hile  a  tender  after  default  stops  the  running  of 
interest,  it  does  not  destroy  the  lien  of  the  mortgage.^]  And 
in  California,  a  mortgagor  may  have  a  suit  to  redeem  the 
premises  before  as  well  as  after  payment  of  the  debt,  although 
a  mortgage  carries  with  it  no  right  to  divest  the  mortgagor  of 

^  2  Cruise,  Dig.  91,  note  ;  Erskine  v.  Townsend,  2  Mass.  493  ;  Nugent  v. 
Kiley,  1  Met.  117;  Holman  v.  Bailey,  3  Met.  55;  Richard.son  v.  Cambridge, 
2  Allen,  118  ;  Merrill  v.  Chase,  3  Allen,  339  ;  ante,  §  1091. 

2  Darling  v.  Chapman,  14  Mass.  101  ;  Post  v.  Arnot,  2  Denio,  344  ;  Merritt  v. 
Lambert,  7  Paige,  344  ;  Shields  v.  Lozear,  34  N.  J.  496. 

3  Jackson  v.  Crafts,  18  Johns.  110  ;  Wilhird  v.  Hnrvey,  5  N.  H.  252  ;  Post  v. 
Arnot,  2  Denio,  344,  overruling  the  same  case,  6  Hill,  65  ;  Kortright  v.  Cady,  23 
Barb.  490  ;  s.  c.  21  N.  Y.  343,  overruling  the  case  in  Barbour.  See  also  Farmers' 
F.  I.  Co.  V.  Edwards,  26  Wend.  541  ;  Hartley  v.  Tatham,  2  Abb.  App.  Dec. 
333;  Trimm  v.  Marsh,  54  N.  Y.  599;  Nelson  v.  Loder,  132  N.  Y.  288;  s.  c. 
30  N.  E.  Rep.   369. 

*  Caruthers  v.  Humphrey,  12  Mich.  270  ;  Moynahan  v.  Moore,  9  Mich.  9 ; 
Van  Husan  v.  Kanouse,  13  Mich.  303. 

6  Shields  v.  Lozier,  34  N.  J.  L.  496  ;  Grain  v.  McGoon,  86  111.  431  ;  Matthews 
V.  Lindsay,  20  Fla.  962  ;  Parker  i-.  Beasley,  116  N.  C.  1  ;  s.  c.  21  S.  E.  Rep.  955  ; 
Rowell  V.  Mitchell,  68  Me.  21  ;  Hudson  Bros.  Com.  Co.  r.  Glenooe  S.  &  G.  Co.,  140 
Mo.  103  ;  s.  c.  41  S.  W.  Rep,  450;  Perre  v.  Castro,  14  Cal.  519. 


152  MORTGAGES. 

the  possession  until  foreclosure.^  But  where,  as  is  often  the 
case  in  England,  the  deed  requires  the  mortgagee  to  reconvey 
upon  the  condition  being  performed,  a  mere  performance  will 
not,  ^jcr  se,  defeat  the  mortgagee's  estate. ^ 

§  1108.  Who  may  redeem.  —  As  to  the  question  who  may 
exercise  this  right  of  redemption,  it  seems  to  belong  to  every 
person  who  is  interested  in  the  mortgaged  estate,  or  any  part 
of  it,  having  a  legal  estate  therein,  or  a  legal  or  equitable 
lien  thereon,  provided  he  comes  in  as  privy  in  estate  with 
the  mortgagor.  But  without  this  privity,  no  one  can  exer- 
cise the  right.  ^  But  where  a  second  mortgagee  has  mort- 
gaged his  mortgage,  he  may,  at  any  time  before  his  own 
mortgage  is  foreclosed,  redeem  from  the  prior  mortgage  upon 
the  estate.^  One  holding  a  bond  only,  for  the  conveyance  of 
an  equity  of  redemption,  cannot  maintain  a  bill  to  redeem, 
nor  can  any  one  who  has  not  a  legal  title. ^  Among  those 
who  may  redeem  are  heirs,  devisees,  executors,  administra- 
tors, and  assignees  of  the  mortgagor,^  subsequent  incum- 
brancers,'^ as,  for  instance,  the  mortgagee  of  a  reversion  as 

1  Daiibenspeck  v.  Piatt,  22  Cal.  330,  335. 

2  2  Cruise,  Dig.  91. 

3  4  Kent,  Com.  167  ;  Gibson  v.  Crehore,  5  Pick.  146  ;  2  Crabb,  Real  Prop. 
903  ;  Story,  Eq.  Jur.  §  1023 ;  Grant  v.  Duane,  9  Johns.  591  ;  Moore  v.  Beasom, 
44  N.  H.  215  ;  Gage  v.  Brewster,  31  N.  Y.  218,  222. 

*  Manning  v.  Markel,  19  Iowa,  103. 

5  Grant  v.  Duane,  9  Johns.  '591  ;  McDougald  v.  Capron,  7  Gray,  278.  The 
latter  case  turned  on  a  statute ;  and  see  Lowry  v.  Tew,  8  Barb.  Ch.  407,  contra. 
And  a  cestui  que  trust  may,  if  the  trustee  refuses.  Fray  v.  Drew,  11  Jur.  N.  s.  130. 
As  to  who  stands  in  the  relation  of  privity  in  estate  with  a  mortgagor,  see  Packer 
V.  Eoch.  R.  R.,  17  N.  Y.  283.     See  Downer  v.  Wilson,  33  Vt.  1. 

6  Coote,  Morg.  516,  including  assignees  in  bankruptcy;  Sheldon  v.  Bird, 
2  Root,  509  ;  Craik  v.  Clark,  2  Hayw.  22  ;  Merriam  v.  Barton,  14  Vt,  501  ;  Bell 
V.  The  Mayor,  10  Paige,  49  ;  Smith  v.  Manning,  9  Mass.  422. 

^  Burnet  v.  Denniston,  5  Johns.  Ch.  35  ;  Watt  v.  Watt,  2  Barb.  Ch.  371 ; 
Twombly  v.  Cassidy,  82  N.  Y.  155  ;  Cooper  v.  Martin,  1  Dana,  23  ;  Brown  v. 
Worcester  Bk.,  8  Met.  47  ;  Thompson  v.  Chandler,  7  Me.  377  ;  Allen  v.  Clark, 
17  Pick.  47  ;  Taylor  v.  Porter,  7  Mass.  355  ;  Farnum  v.  Metcalf,  8  Cush.  46  ; 
Coote,  Mortg.  517,  518  ;  Bigelow  v.  Wilson,  1  Pick.  485  ;  Goodman  v.  White, 
26  Conn.  317.  But  query  how  far  a  third  or  fourth  mortgagee  can  redeem  from 
the  first  mortgagee  without  having  first  redeemed  the  intermediate  mortgages. 
See  Saunders  v.  Frost,  5  Pick.  259.  And  in  some  cases  the  subsequent  incum- 
brancer has  been  restricted  from  redeeming  unless  the  elder  mortgage  is  being 
enforced.  Frost  v.  Yonkers  Sav.  Bk.,  70  N.  Y.  553,  557;  Bigelow  v.  Cassedy,  26 
N.  J.  Eq.  557,  562.     Special  administrator.     Libby  v.  Cobb,  76  Me.  471. 


OP   THE   mortgagor's   INTEREST.  lo3 

against  a  prior  mortgagee,^  judgment  creditors, ^  tenants  for 
years,^  a  jointress,*  dowress,  and  married  woman  by  virtue  of 
her  inchoate  right  of  dower  in  the  mortgaged  premises,^  and 
tenant  by  curtesy.^  But  in  order  to  a  widow's  redeeming 
from  a  mortgage  of  her  husband,  in  which  she  joined,  she 
must,  if  the  mortgagee  insists,  offer  to  pay  the  entire  mort- 
gage-debt.'^ One  having  an  easement  in  the  land  may  re- 
deem.^ So  remaindermen,  committees  of  lunatics,  guardians 
of  minors,  and  what  are  known  as  voluntary  grantees  under 
the  statute  of  Elizabeth,  although  the  mortgage  may  be  good, 
pro  tanto,  against  such  conveyance.^  Nor  can  the  mortgagee 
object  that  the  mortgagor  conveyed  his  equity  of  redemption 
to  defraud  creditors.  ^°  Where  there  is  a  trustee  or  a  cestui 
que  trust  of  an  estate  which  is  subject  to  a  mortgage,  the 
trustee  is  the  proper  party  to  redeem,  and  not  the  cestui  que 
trust.^^  If  a  mortgagor  die,  pending  a  bill  in  equity  to  re- 
deem the  estate,  his  heir  may  have  a  bill  of  revivor  to  renew 
and  carry  on  the  suit.^^  The  owner  of  any  interest  or  frac- 
tional part,  however  small,  of  the  mortgaged  premises,  may 
redeem.      But  in  order  to  do  so,  he  is  obliged  to  pay  the 

1  Smith  V.  Provin,  4  Allen,  .516. 

2  Hitt  V.  Holliday,  2  Lit.  332  ;  Dabney  v.  Green,  4  Hen.  &  M.  101  ;  Warner 
V.  Everett,  7  B.  Mon.  262  ;  Elliot  v.  Patton,  4  Yerg.  10 ;  Stonehewer  v.  Thomp- 
son, 2  Atk.  440 ;  Calioon  v.  Laffan,  2  Cal.  595  ;  Tucker  v.  White,  2  Dev.  &  B. 
Eq.  289 ;  Brainard  v.  Cooper.  10  N.  Y.  356. 

3  Keech  v.  Hall,  Doug.  21 ;  Rand  v.  Cartwright,  1  Ch.  Cas.  59  ;  Loud  v.  Lane, 
8  Met.  517  ;  Bacon  v.  Bowdoin,  22  Pick.  401  ;  Mass.  Pub.  Stat.  1S81,  c.  181, 
§  21  ;  Averill  v.  Taylor,  8  N.  Y.  44.  But  whether  the  owner  of  a  dwelling-house 
standing  upon  the  land  of  another  which  is  under  mortgage  can  maintain  a  bill  in 
equity  to  redeem  the  land,  is  left  unsettled  in  Clary  v.  Owen,  15  Gray,  525. 

*  Howard  v.  Harris,  1  Vern.  190  ;  2  White  &  Tud.  Cas.  752. 
6  Davis  V.  Wetherell,  13  Allen,  60  ;  Newhall  v.  Lyun  Sav.  Bk.,  101  Mass. 428, 
431  ;  Lamb  v.  Montague,  112  Mass.  352. 

6  Palmes  v.  Danby,  Prec.  Ch.  137;  Gibson  v.  Crehore,  5  Pick.  146;  Eaton  v. 
Simonds,  14  Pick.  98  ;  2  Crabb,  Real  Prop.  905  ;  Rossiter  v.  Cossitt,  15  N.  H.  38. 

7  McCabe  v.  Bellows,  7  Gray,  148  ;  McCabe  v.  Swap,  14  Allen,  188,  191 ;  Lamb 
V.  Montague,  supra. 

8  Bacon  v.  Bowdoin,  22  Pick.  401. 

9  Coote,  Mortg.  517,  518. 

10  Bradley  v.  Snyder,  14  111.  263. 

11  Dexter  v.  Arnold,  1  Sumn.  109.  Aliter  if  the  trustee  refuses.  Fray  v.  Drew, 
11  Jur.  N.  s.  130. 

12  Putnam  i-.  Putnam,  4  Pick.  139. 


154  MORTGAGES. 

whole  debt,  since  the  mortgagee  cannot  be  compelled  to  take 
his  debt  by  instalments.  And  by  such  payment,  as  will  be 
seen,  the  one  who  makes  it  becomes  substituted  in  equity  in 
place  of  the  mortgagee,  in  respect  to  his  lien  upon  the  other 
parts  of  the  estate.^  Such  would  be  the  case  if  a  widow  have 
a  right  of  homestead  subject  to  a  mortgage,  and  she  redeems 
by  paying  the  whole  debt.^ 

§  1109.  Whole  Debt  must  be  paid.  —  And  the  proposition 
seems  to  be  unqualified,  that  nothing  short  of  paying  the 
whole  debt  will  work  a  redemption  of  a  moi'tgaged  estate, 
although  the  debt  itself  may  be  barred  by  the  statute  of  limi- 
tations,^ or  is  the  property  of  another  than  the  holder  of  the 
mortgage,*  or  the  land  itself  has  been  sold  for  less  than  the 
debt.^  But  a  tender  of  payment  is  as  efTectual  a  bar  to  a 
foreclosure,  if  made  in  proper  time,  as  an  actual  payment 
would  be ;  and  a  readiness  and  offer  to  pay,  if  the  mortgagee 
declines  to  accept,  is  tantamount  to  a  tender.^ 

§  1110.  How  far  Purchaser  of  Equity  of  Redemption  can  im- 
peach Mortgage.  —  If  one  purchases  or  acquires  by  assignment 
an  estate  subject  to  a  mortgage,  or  a  right  in  equity  to  redeem 
from  an  existing  mortgage,  he  will  not  be  at  liberty  to  set 
up  usury  in  the  mortgage-debt  to  defeat  or  diminish  the  claim 
of  the  mortgagee.'     If  one  purchase  an  equity  of  redemption 

1  Taylor  v.  Porter,  7  Mass.  355  ;  Gibson  v.  Crehore,  5  Pick.  146  ;  Chittenden 
V.  Barney,  1  Vt.  28  ;  Mullanphy  v.  Simpson,  4  Mo.  319  ;  2  Crabb,  Real  Prop. 
911  ;  Smith  v.  Kelley,  27  Me.  237  ;  Powell,  Mortg.  339,  340  ;  Cholmondeley  v. 
Clinton,  2  Jac.  &  AV.  134  ;  Bell  v.  The  Mayor,  10  Paige,  49,  71  ;  Downer  v.  Wil- 
son,  33  Vt.  1  ;  Fletcher  v.  Chase,  16  N.  H.  38.  See,  as  to  dowress  contributing 
to  redeem,  Mass.  Pub.  Stat.  c.  124,  §  5  ;  Newton  v.  Cook,  4  Gray,  46  ;  McCabe 
V.  Bellows,  7  Gray,  148  ;  Douglass  v.  Bishop,  27  Iowa,  214  ;  McCabe  v.  Swap, 
14  Allen,  188,  191. 

2  Non-is  V.  Moulton,  34  N".  H.  392;  Lamb  r.  Montague,  112  Mass.  352. 

8  Balch  V.  Onion,  4  Cush.  559  ;  Pratt  v.  Huggins,  29  Barb.  277  ;  Booker  v. 
Anderson,  35  111.  66,  86. 

*  Johnson  v.  Candage,  31  Me.  28. 

5  Bradley  v.  Snyder,  14  111.  263  ;  2  Crabb,  Eeal  Prop.  911. 

6  Walden  v.  Brown,  12  Gray,  102. 

^  Shufelt  V.  Shufelt,  9  Page,  137,  Green  v.  Kemp,  13  Mass.  515;  Bridge  v. 
Hubbard,  15  Mass.  103;  Sands  v.  Church,  6  N.  Y.  347;  Berdan  v.  Sedgwick, 
44  N.  Y.  626  ;  Dix  v.  Van  Wick,  2  Hill,  522  ;  Weed  Sew.  Mach.  v.  Emerson, 
115  Mass.  554.  It  seems,  however,  that  in  New  York,  as  usury  avoids  a  contract, 
where  usury  is  taken  the  estoppel  shall  only  e.xtend  to  the  amount  actually  paid. 
Payne  v.  Burnham,  62  N.  Y.  69.     But  where  there  is  no  usury,  the  mortgagor  or 


OP   THE   mortgagor's   INTEREST.  155 

at  a  sheriff's  sale,  he  cannot  deny  the  validity  of  the  mort- 
gage subject  to  which  he  purchased ;  for  if  there  were  no 
mortgage,  there  could  be  no  equity.  But  if  there  are  two  or 
more  mortgages,  he  may  object  that  the  second  or  others  were 
void  by  being  fraudulent  as  to  creditors.^  iiut  the  jjurchaser 
of  an  equity  of  redemption  cannot  object  that  the  mortgage 
was  void  because  fraudulent  against  creditors;  nor  could  he 
contradict  the  certificate  of  possession  taken  to  foreclose, 
signed  by  the  mortgagor  and  recorded.''^  And  the  rule  as  to 
the  right  of  a  purchaser  of  an  estate  under  mortgage  to  set 
up  objections  to  the  mortgage,  which  the  mortgagor  himself 
might  have  done,  seems  to  be  this :  If  he  purchases  the  right 
to  redeem  from  such  mortgage,  he  cannot  set  up  a  personal 
disability  to  make  the  mortgage,  which  the  moi-tgagor  himself 
might  have  done;^  nor  that  it  was  obtained  by  fraud  ;^  nor 
that  the  mortgagee  has  not  advanced  to  the  mortgagor  the 
full  amount  covered  by  the  mortgage,  if,  when  the  sale  was 
made,  the  full  amount  named  in  the  mortgage  was  deducted 
from  the  price  paid  for  the  estate.^  But  if  one  purchase  an 
estate  which  is  under  mortgage,  or  take  a  second  mortgage 
of  the  same,  but  does  not  undertake  to  pay  the  first  mortgage, 
or  take  the  estate  subject  to  it,  he  may  take  advantage  of 
usury  in  the  first  mortgage  in  the  same  way  as  the  mortgagor 
himself  miglit  do.^ 

§  1111.  Incidents  of  Right  to  redeem. —  Where  a  mortgagee 
enters  for  non-payment  of  interest  or  an  instalment  of  the 
debt,  and  the  mortgagor  seeks  to  redeem,  but,  before  a  decree 
for  such  redemption,  the  principal  of  the  debt  becomes  due, 
he  can  only  redeem  by  paying  all  that  is  due  at  the  time  of 
the  rendition  of  the  decree.'^     And  where  the  mortgagee  had 

his  assignee  is  estopped  as  against  the  assignee  of  the  mortgage  to  diminish  the  face 
of  the  claim.     Giissler  v.  Powers,  81  N.  Y.  57. 

1  Russell  V.  Dudley,  3  Met.  147  ;  Stobbins  v.  Miller,  12  Allen,  591 ;  Gerrish 
V.  Mace,  9  Gray,  235. 

2  Taylor  v.  Dean,  7  Allen,  251  ;  Russell  v.  Dudley,  3  Met.  147. 
8  Comstock  V.  Smith,  26  Mich.  306. 

4  Fairfield  v.  McArthur,  15  Gray,  726  ;  Foster  v.  Wightman,  123  Mass.  100. 
^  Freeman  v.  Auld,  44  N.  Y.  50 ;   and  see  Johnson  v.  Thompson,  129  Mass. 
398  ;  Grissler  v.  Powers,  81  N.  Y.  57. 

6  Berdan  v.  Sedgwick,  44  N.  Y.  626,  631. 

7  Adams  v.  Brown,  7  Cash.  220;  Stewart  v.  Clark,  11  Met.  384. 


156  MORTGAGES. 

entered  under  a  conditional  judgment  in  a  suit  to  foreclose, 
the  amount  found  due  by  such  judgment  was  held  conclusive 
upon  any  party  who  sought  to  redeem  from  his  mortgage. i 
It  is  no  bar  to  a  mortgagor's  right  to  redeem  a  part  of  a  mort- 
gaged estate,  that  he  has  lost  the  right  as  to  another  part  of 
it. 2  But  no  mortgagor  can  compel  a  redemption  before  the 
time  fixed  in  the  deed  for  performance  of  the  condition. ^  A 
mortgage  may,  however,  be  made  so  that,  upon  the  failure  to 
pay  any  one  of  several  instalments  of  a  debt  secured  thereby, 
the  mortgage  may  he  enforced  as  to  the  whole  debt,  although 
not  otherwise,  in  terms,  due  and  payable.  And  in  such  case 
the  mortgagor,  in  order  to  redeem,  must  pay  the  entire  sum 
secured.* 

S  1112,  Enforcing  Mortgage  for  Larger  Sum  than  then  due. — 
But  questions  have  arisen  how  far  it  is  competent  to  enforce  a 
mortgage  for  a  larger  sum  than  is  due,  in  the  first  instance,  if 
there  be  a  failure  to  pay  that  sum  at  any  specified  time.  If 
the  sum  to  be  paid  upon  such  failure  be  inserted  by  way  of 
penalty,  the  court  would  allow  the  mortgagor  to  redeem  and 
relieve  the  estate  from  forfeiture. °  So  if  one  make  two  or 
three  successive  mortgages  of  the  same  land,  and,  upon  fail- 
ing to  pay  the  first  of  these,  he  agree  with  the  holder  thereof 
to  pay  an  extra  sum  as  interest  if  he  would  delay  the  enforce- 
ment of  the  mortgage,  it  was  held  that  as  to  such  extra  inter- 
est the  first  mortgage  did  not  constitute  a  lien  upon  the  land 
as  against  the  subsequent  mortgagees.  ^  But  a  mortgage  made 
to  secure  the  payment  of  a  debt  in  instalments,  with  a  provi- 
sion, that,  if  any  instalment  shall  be  in  arrear  a  certain  num- 
ber of  days,  the  whole  debt  shall  be  due  and  collectible,  may 
be  enforced  for  the  whole  amount  of  the  debt,  if  such  failure 
occur. ^  And  the  same  would  be  the  effect  if,  by  the  terms  of 
a  bond,  secured  by  mortgage,  and  payable  on  time,  it  were  to 
be  paid  in  full  if  the  interest  therein  reserved  should  not  be 

1  Sparhawk  v.  Wills,  5  Gray,  423  ;  Freison  v.  Bates  Coll.,  128  Mass.  464, 

2  Dexter  v.  Arnold,  1  Sumn.  109. 
8  Coote,  Mortg,  528. 

*  Robinson  v.  Looniis,  51  Penn.  St.  78. 
6  Tiernan  v.  Hinman,  16  111.  400. 
6  Burchard  v.  Fraser,  23  Mich.  224. 
T  Spring  V.  Fi.ske,  21  N,  J.  Eq.  175. 


OF   THE   mortgagor's   INTEREST.  157 

paid  when  due.^  But  the  non-payment  of  such  instalment  is 
only  to  be  taken  advantage  of  by  the  mortgagee:  the  mort- 
gagor could  not,  by  failing  to  pay  the  same,  treat  the  debt  as 
due,  and,  by  tendering  the  whole  debt,  affect  the  lien  of  the 
mortgagee  upon  the  estate.  ^ 

§  1113.  Contribution  and  Subrogation.  —  Where  One  of  sev- 
eral persons  interested  in  a  mortgaged  estate  redeems  it  by 
paying  the  whole  debt,  he  does  not  thereby  relieve  the  other 
portions  of  the  estate  from  the  charge,  but  becomes  an  equita- 
ble assignee  of  the  mortgage  as  to  these  parts,  and  may  hold 
the  same  as  mortgagee  until  the  respective  owners  thereof 
shall  contribute,  pro  rata,  towards  the  mortgage-debt  accord- 
ing to  the  value  of  their  respective  shares  of  the  estate,  com- 
pared with  that  of  the  entire  estate.^  But  where  two  tenants 
in  common  join  in  a  mortgage  of  the  common  property  to 
secure  the  debt  of  one  of  them,  and  then  the  other  conveys 
his  share  to  the  mortgagee,  it  was  held,  that  the  one  whose 
debt  was  secured  must  pay  the  whole  debt  to  redeem  his  share 
of  the  estate,  and  would  thereby  relieve  the  other  share.* 
Where  the  purchaser  of  an  equity  of  redemption  paid  off  the 
existing  mortgages,  he  was  subrogated  to  the  rights  of  the 
mortgagees.^  Where,  between  a  first  and  second  mortgage,  a 
judgment  lien  has  been  created  upon  the  estate,  and,  upon 
foreclosure  of  the  second  mortgage,  the  purchaser  pays  the 
first  mortgage,  he  has  the  right  of  the  first  mortgagee  against 
the  judgment  creditor.^  And  if,  in  order  to  save  his  estate, 
a  second  mortgagee  pays  the  interest  falling  due  upon  a  prior 
mortgage -debt,  he  acquires  thereby  a  lien  upon  the  mortgaged 
estate  in  the  place  of  the  mortgagee,  to  the  extent  of  the  in- 
terest thus  paid,  but  he  holds  it  subject  to  the  prior  lien  of 
the  mortgage-debt  in  favor  of  the  mortgagee  for  all  the  excess 

1  Harper  u.  Ely,  56  111.  179. 

2  Hartley  v.  Tatham,  2  Abb.  (N".  Y.)  337,  339. 

3  4  Kent,  Com.  163  ;  Story,  Eq.  .lur.  §  1023 ;  Gibson  v.  Crehore,  5  Pick.  146  ; 
Parkraan  v.  Welch,  19  Pick.  231  ;  Salem  v.  Edgerly,  33  N.  H.  46  ;  Aiken  v.  Gale, 
37  N.  H.  501 ;  Tovvie  u.  Hoit,  14  N.H.  61 ;  Blue  v.  Blue,  38  111.  9  ;  Penn.  v.  Rail- 
way Co.,  20  Am.  L.  Reg.  576  ;  Briscoe  v.  Power,  47  111.  447  ;  Wheeler  v.  Willard, 
44  Vt.  640. 

4  Crafts  V.  Crafts,  13  Gray,  360. 

6  Warren  v.  Warren,  30  Vt.  530 ;  Walker  v.  King,  44  Vt.  601. 
0  Raymond  v.  Holborn,  23  Wis.  57. 


158  MORTGAGES. 

above  the  interest.^  But,  as  will  be  more  fully  explained 
hereafter,  this  doctrine  applies  only  between  parties  who 
stand,  in  respect  to  the  estate,  in  cequali  jure  ;  for  if,  for  in- 
stance, a  man  purchases  a  part  of  an  estate  subject  to  the 
entire  mortgage,  he  pays  a  price  accordingly,  and  has  obvi- 
ously no  claim  in  equity  upon  any  person  to  contribute 
towards  it.^  Where  a  second  mortgage  was  made  to  three 
persons,  and  in  order  to  protect  their  estate  it  became  neces- 
sary to  redeem  the  prior  mortgage,  and  two  only  of  three 
were  willing  to  do  so,  it  was  held,  that  by  so  doing  they  be- 
came equitable  assignees  of  such  mortgage  against  their  co- 
mortgagee,  and  by  a  bill  in  equity  they  might  compel  him 
either  to  contribute  towards  redeeming  the  same,  or  convey 
his  interest  in  the  first  mortgage  to  them.^ 

§  1114.  Further  of  the  Right  to  redeem.  —  Nor  WOuld  the 
purchaser  of  an  equity  of  redemption  sold  upon  execution  be 
affected  as  to  his  right  to  redeem  the  estate  by  the  circum- 
stance that  the  premises  were,  at  the  time  of  such  sale,  in  the 
possession  of  a  disseisor.  The  unlawful  possession  of  the 
land  does  not  affect  an  incorporeal  hereditament  existing  in 
respect  to  it,  like  an  equity  of  redemption.*  So  where  a  cred- 
itor to  whom  land  of  his  debtor  has  been  set  off  to  satisfy  an 
execution,  had  mortgaged  it  to  a  third  person,  and  the  origi- 
nal debtor  obtained  a  reversal  of  the  judgment  which  had  thus 
been  satisfied,  it  was  held  that  he  might,  by  a  process  in 
equity,  compel  the  mortgagee  in  such  mortgage  to  discharge 
the  same.^  Where  a  mortgagor  or  assignee  redeems,  he  re- 
gains his  estate  just  as  it  existed  when  he  made  the  mortgage; 
the  operation  of  the  mortgage  is  defeated  by  force  of  the  con- 
dition ;  he  takes  the  estate  with  all  the  incidents  and  benefits, 
and  subject  to  the  servitudes,  to  which  it  was  subject  when 
the  mortgage  was  made;  and  no  lease,  charge,  or  incum- 
brance made  by  the  mortgagee  can  be  set  up  against  the 
claims  of  the  mortgagor.  The  estate  is  restored  unchanged.  ^ 
Where  there  are  several  parties  before  the  court,  each  claim- 

1  Penii  V.  Railway  Co.,  20  Am.  L.  Reg.  ^1%. 

2  Gill  V.  Lyon,  1  Johns.  Ch.  447;  Clowes  v.  Dickenson,  5  Johns.  Ch.  235  ;  Porter 
V.  Seabor,  2  Root,  146  ;  Allen  v.  Clark,  17  Pick.  47. 

3  Saunders  v.  Frost,  5  Pick.  259.  *  Thompson  v.  Chandler,  7  Me.  377. 
6  Delano  v.  Wilde,  11  Gray,  17.  «  Ritger  v.  Parker,  8  Cush.  145,  149. 


OF    THE   mortgagor's    INTEREST.  159 

ing  the  right  to  redeem  the  mortgaged  estate,  the  court  will 
decree  the  redemption  according  to  the  priority  of  the  claims 
of  the  several  parties;  namely,  the  second  to  redeem  the  first, 
the  third  the  second,  and  so  on.^  And  where  two  estates  are 
included  in  the  same  mortgage,  and  tlie  equities  in  these  de- 
volve upon  different  persons,  if  either  wishes  to  redeem,  he 
should  make  the  holder  of  the  other  equity  a  party  to  the 
bilL^  And  in  England,  where  a  mortgagor  has  given  two 
separate  mortgages  of  two  distinct  estates  to  the  same  mort- 
gagee to  secure  two  distinct  debts,  equity  will  not  admit  of 
his  redeeming  one  of  these  without  redeeming  both.^  But 
such  is  not  the  law  in  this  country;  each  mortgage  has  its 
own  equity  of  redemption,  unaffected  by  the  equity  of  any 
other  mortgage.*  If  the  mortgagor  die  before  redeeming  the 
estate,  his  heir  or  assignee  becomes  the  only  party  who  can 
maintain  a  process  for  redemption;^  and  all  the  heirs  should 
be  before  the  court.  ^ 

§  1115.  Parties  to  Redemption  Proceedings.  —  All  persons 
interested  in  the  mortgage,  whether  as  holders,  trustees,  or 
otherwise,  should  be  made  defendants  in  a  bill  to  redeem." 
Thus  a  mortgagee  who  has  pledged  his  mortgage  must  be 
made  a  party  as  well  as  his  pledgee.^  Thus  where  the  widow 
of  the  mortgagor  brought  a  bill  to  redeem  the  mortgage,  she 
properly  made  the  owner  of  the  husband's  equity  a  party, 
since  he  was  interested  in  the  mortgagee's  account,  for  upon 
her  redeeming  she  became  substituted  to  the  place  of  the 
mortgagee  as  against  the  holder  of  the  husband's  equity,  with 
a  right  to  be  reimbursed  all  that  she  had  paid  to  redeem  but 
her  own  share  of  the  mortgage-debt.^     So  should  purchasers 

^  Coote,  Mortg.  526  ;  Arcedechne  v.  Bowes,  3  Meiiv.  216,  n. 

2  Coote,  Mortg.  527  ;  Cholmondeley  v.  Clinton,  2  Jac.  &  W.  134. 

3  Pope  V.  Onslow,  2  Vern.  286. 

*  Bridgen  v.  Carhartt,  Hopk.  Ch.  234  ;  Milliken  v.  Bailey,  61  Me.  316. 

6  Barker  v.  Wood,  9  Mass.  419  ;  Smith  v.  Manning,  id.  422  ;  Elliot  v.  Patton, 
4  Yerg.  10  ;    Shaw  v.  Hoadley,  8  Blackf.  165. 

6  1  Daniell,  Ch.  Prac.  240,  264,  Perkins'  ed.  and  n.  ;  Wolcott  v.  Sullivan, 
6  Paige,  117.  But  the  heirs  of  the  mortgagor  need  not  be  made  parties  to  a  bill 
to  foreclose  a  mortgage,  by  statute  in  Illinois.     Rockwell  v.  Jones,  21  111.  279. 

7  1  Daniell,  Ch.  Prac.  306,  307;  Fisher,  Mortg.  187  et  scq. 

*  Brown  v.  Johnson,  53  Me.  246. 

«  McCabe  v.  Bellows,  1  Allen,  269  ;  Passumpsic  Bk.  v.  Weeks,  59  N.  H.  239. 


IGO  MORTGAGES. 

from  a  mortgagee  in  possession  for  condition  broken  ;i  though, 
if  a  mortgagee  shall  have  assigned  his  whole  interest,  he  need 
not  be  made  a  party, ^  unless  interested  in  the  question  of  the 
amount  for  which  the  estate  is  to  be  held.^ 

§  1116.  A  Bill  to  redeem  must  make  a  Tender  of  the  amount 
due  and  an  offer  to  pay  it ;  ^  but,  in  Massachusetts,  without  a 
previous  tender  of  the  debt.  If,  however,  the  mortgagee  have 
done  nothing  to  prevent  the  mortgagor  performing  the  condi- 
tion, he  will,  in  such  a  proceeding,  be  entitled  to  his  costs. ^ 
But  in  Mississippi  the  mortgagor  must  make  a  tender  of  the 
mortgage-debt  before  he  can  maintain  a  bill  to  redeem.^  If 
neither  in  nor  prior  to  the  bill  is  there  any  offer  to  pay,  the 
bill  cannot  be  maintained.'^ 

§  1117.  Redemption  barred  by  Limitation.  —  A  mortgagor 
may  be  barred  of  his  right  of  redemption  by  limitation,  where 
the  possession  of  the  premises  has  been  adverse  for  twenty 
years,  or  a  shorter  period,  conforming  to  the  statute  of 
limitation  of  the  State  where  the  land  lies,  as  where  the 
mortgagee  has  been  in  possession  during  that  time  without 
recognizing  that  he  held  under  his  mortgage.  In  such  a 
case,  the  law  presumes  the  equity  to  be  extinguished.  But 
no  length  of  time  of  holding  possession  by  a  mortgagee  will 
bar  the  right  of  redemption,  if  the  mortgage  is  treated  during 
that  time  as  a  subsisting  security  for  the  debt;^  and  the  same 
would  be  the  result  if  the  mortgagee  had  entered  under  an 
agreement  to  keep  possession  till  his  debt  should  be  paid  out 
of  the  profits  of  the  estate.^     So  a  possession  for  the  requisite 

1  Wing  V.  Davis,  7  Me.  31. 

2  Wolcott  V.  Sullivan,  1  Edw.  Ch.  399. 

3  Doody  V.  Pierce,  9  Allen,  141. 

*  Kemp  V.  Mitchell,  36  Ind.  249  ;  Perry  v.  Carr,  41  N.  H.  371  ;  Crews  v. 
Threadgill,  35  Ala.  334. 

5  Miller  v.  Lincoln,  6  Gray,  556  ;  and  see  cases  in  preceding  note.  For  the 
subject  of  costs  in  such  cases  see  Brown  v.  Simons,  45  N.  H.  211. 

«  Hooyjes  v.  Bailey,  28  Miss.  328. 

7  Allerton  v.  Belden,  49  N.  Y.  373. 

8  Dexter  v.  Arnold,  1  Sumn.  109  ;  Ayres  v.  Waite,  10  Cush.  72  ;  Chicle  v.  Rol- 
lins, 44  Me.  104,  116  ;  Story,  Eq.  §  1028  ;  Tripe  v.  Marcy,  39  N.  H.  439  ;  McNair 
V.  Lot,  34  Mo.  285. 

^  Marks  v.  Pell,  1  Johns.  Ch.  594.  Upon  the  general  question  when  a  mort- 
gagor's right  in  equity  is  barred  by  limitations,  see  Hurd  v.  Coleman,  42  Me.  182  ; 
Blethen  v.  Dwinal,  35  Me.  556  ;  Robinson  v.  Fife,  3  Ohio  St.  551 ;  Jarvis  v.  Wood- 


OF   THE   mortgagor's   INTEREST.  161 

period  of  limitation,  under  a  de  facto  foreclosure,  will  bar  the 
redemption,  though  the  proceedings  in  effecting  such  foreclos- 
ure were  irregular,  unless  the  mortgagor  accounts  for  the 
delay  in  a  manner  to  do  away  the  presumptions  of  law.^ 
Nothing  short  of  an  actual  possession  by  the  mortgagee  will 
avail  him  in  such  case  in  the  way  of  a  bar  to  the  mortgagor's 
right  of  redemption.^  Nor  will  any  length  of  possession  bar 
the  mortgagor's  right  where  the  mortgagee  enters  before  con- 
dition broken,  and  holds  over,  without  notice  that  he  does  so 
for  the  purpose  of  foreclosure. ^  But  if  the  mortgagor  permits 
the  mortgagee  to  hold  the  possession  for  twenty  years  without 
any  demand  to  account,  and  without  any  admission  on  his 
part  by  word  or  act  that  the  mortgage  is  open  to  redemption, 
the  title  of  the  mortgagee  becomes  absolute.*  And  where  the 
grantor,  in  an  absolute  deed,  held  an  agreement  from  the 
grantee  authorizing  him  to  redeem  the  estate  when  he  should 
find  it  convenient,  but  fixing  no  time,  it  was  held  that  no 
length  of  possession  by  the  mortgagee  would  bar  the  mort- 
gagor's right  of  redemption.^  Upon  the  point  of  what  shall 
be  a  recognition  by  the  mortgagee  of  the  mortgagor's  rights, 
so  as  to  rebut  the  inference  to  be  derived  from  the  unex- 
plained holding  of  possession  by  such  mortgagee,  it  has  been 
held,  that  commencing  proceedings  to  foreclose  his  mortgage 
rebuts  the  presumption  of  a  release  by  the  mortgagor  of  his 
right.  ^  So  any  acts  recognizing  an  existing  right  of  redemp- 
tion, such  as  stating  an  account  of  the  profits  of  the  estate  in 
which  it  is  treated  as  subject  to  be  redeemed,  although  not 

ruff,  22  Conn.  548  ;  Morgan  v.  Morgan,  10  Ga.  297;  Elmendorf  f.  Taylor,  10  Wheat. 
152  ;  Hughes  v.  Edwards,  9  Wheat.  489  ;  Cholniondeley  v.  Clinton,  2  Jac.  &  W. 
191  ;  Gordon  v.  Hobart,  2  Sumn.  401  ;  Cromwell  v.  Pittsb.  Bk.,  2  Wall.  Jr.  569  ; 
Wells  V.  Morse,  11  Vt.  1  ;  Watt  v.  Wright,  66  Cal.  202. 

1  Slicer  v.  Pittsburg  Bk.,  16  How.  571. 

2  Bollinger  i-.  Chouteau,  20  Mo.  89  ;  Moore  v.  Cable,  1  Johns.  Ch.  385. 

8  Goodwin  V.  Richardson,  11  Mass.  469  ;  Newall  i;.  Wright,  3  Mass.  138  ;  Scott 
V.  McFarland,  13  Mass.  308. 

*  Roberts  v.  Littlefield,  48  Me.  61  ;  Chick  v.  Rollins,  44  Me.  104  ;  Story's  Eq. 
§  1028  a.  Thus  where  the  mortgagee  of  the  mortgagee  foreclosed  the  first  mort- 
gage and  retained  possession  for  over  twenty  years,  it  was  held  a  bar  to  redemption 
of  the  second.  Stevens  v.  Dedham  Sav.  Inst.,  129  Mass.  547.  See  Knowlton  v. 
Walker,  13  Wis.  264. 

6  Wyman  u.  Babcock,  2  Curtis  (C.  C),  386. 

6  Calkins  v.  Calkins,  3  Barb.  305. 
VOL.  II.  — 11 


162  MORTGAGES. 

done  with  the  mortgagor  or  his  heirs, ^  and  a  verbal  recogni- 
tion will  be  sufficient, 2 

§  1118.  When  Payment  presumed  from  Lapse  of  Time.  — On 
the  other  hand,  there  are  presumptions  in  favor  of  the  mort- 
gagor, arising  from  long-continued  possession  by  him  of  the 
mortgaged  premises,  without  paying  rent  or  interest,  or  ad- 
mitting the  existence  of  an  outstanding  mortgage-debt.  If 
this  is  continued  for  twenty  years  after  condition  broken,  it 
raises  the  presumption  that  the  debt  has  been  paid  and  the 
mortgage  redeemed.  And  a  bill  for  foreclosure  on  the  part 
of  the  mortgagee  would  thereby  ordinarily  be  barred.^  But 
it  would  seem  that  there  must  be  something  on  the  part  of 
the  mortgagor  showing  affirmatively  that  he  does  not  hold  in 
subordination  to  the  mortgagee's  title,  in  order  to  have  the 
time  of  limitation  begin  to  run.^  Any  recognition  by  the 
then  owner  of  the  equity  of  redemption  during  that  time,  of 
the  existence  of  the  mortgage,  would  rebut  the  presumption  of 
the  mortgage  being  barred,  even  as  to  subsequent  purchasers.^ 
Thus,  if  the  mortgagor  is  not  disturbed  in  his  possession  for 
twenty  years  after  the  debt  secured  by  the  mortgage  is  due, 
without  being  called  upon  to  pay  principal  or  interest,  the 
claim  is  presumed  to  be  barred.  But  this  may  be  rebutted  by 
a  payment  of  interest  or  part  of  the  principal  in  the  mean 

1  Morgan  v.  Morgan,  10  Ga.  297  ;  Hansard  v.  Harvy,  18  Ves.  455 ;  Fairfax  v. 
Montague,  cited  2  Ves.  Jr.  84  ;  Quint  v.  Little,  4  Me.  495  ;  Coote,  Mortg.  544. 

2  Shepperd  v.  Murdock,  3  Murph.  218. 

8  Story,  Eq.  Jur.  §  1028  b ;  Roberts  v.  Welch,  8  Ired.  Eq.  287  ;  Boyd  v.  Har- 
ris, 2  Md.  Ch.  Dec.  210 ;  Evans  v.  Hoffman,  5  N.  J.  Eq,  354  ;  Haskell  v.  Bailey, 
22  Conn.  569  ;  Elkins  v.  Edwards,  8  Ga.  325  ;  Thayer  v.  Mann,  19  Pick.  535  ; 
Richmond  v.  Aiken,  26  Vt.  324  ;  Belmont  v.  O'Brien,  12  N.  Y.  394  ;  Hughes  v. 
Edwards,  9  Wheat.  489  ;  Trash  v.  White,  3  Bro.  C.  C.  291 ;  Blethen  v.  Dwinal, 
35  Me.  556  ;  Inches  v.  Leonard,  12  Mass.  379 ;  Giles  v.  Baremore,  5  Johns.  Ch. 
545  ;  Wms.  Real  Prop.  374,  Am.  ed.  note  ;  Nevitt  v.  Bacon,  32  Miss.  212,  226  ; 
Harris  v.  Mills,  28  HI.  44  ;  Chick  v.  Rollins,  44  Me.  104  ;  Tripe  v.  Marcy,  39 
N.  H.  439  ;  Bacon  v.  Mclntire,  8  Met,  87  ;  Blue  v.  Everett,  55  N.  J.  Eq.  329  ; 
s.  c.  36  Atl.  Rep.  960  ;  Staples  v.  Staples,  20  R.  L  264 ;  s.  c.  38  Atl.  Rep.  498  ; 
ante,  §§  1098,  1099. 

*  Boyd  V.  Beck,  29  Ala.  703;  2  Greenl.  Cruise,  114,  n.  ;  ante,  §§  1098, 
1099. 

5  Heyer  v.  Pniyn,  7  Paige,  465  ;  Hughes  v.  Edwards,  9  Wheat,  489  ;  Wright 
V.  Eaves,  10  Rich,  Eq.  682  ;  Drayton  v.  Marshall,  Rice,  Eq.  373,  383  ;  Moore  t;. 
Clark,  40  N.  J.  E(i.  152. 


OP   THE   mortgagor's   INTEREST.  163 

time.^  And  such  holding  is,  at  best,  only  presumptive  evi- 
dence of  the  debt  being  satisfied. ^  But  the  mortgagor  may 
give  to  his  possession  an  adverse  character  by  some  unequivo- 
cal act  hostile  to  the  title  of  the  mortgagee,  and  brought  dis- 
tinctly home  to  his  knowledge;  such  act,  however,  must  be 
a  clear,  open,  explicit  denial  of  the  mortgagee's  title,  and  a 
refusal  to  hold  under  it,  brought  home  to  the  knowledge  of 
the  mortgagee.  And  until  then,  the  statute  of  limitations 
does  not  begin  to  run.^  In  North  Carolina,  payment  is  pre- 
sumed in  case  of  a  mortgage  after  ten  years  from  the  time  of 
the  last  payment.^  In  Mississippi,  the  mortgagee's  remedy 
in  equity  to  enforce  a  mortgage  is  governed  by  the  same  rules 
of  limitation  as  apply  to  actions  at  law  to  recover  the  debt 
itself;^  while  by  the  statute  7  Wm.  IV.  and  1  Vict.  c.  28,  a 
mortgagee  may  enter  or  bring  a  suit  in  equity  upon  a  mort- 
gage at  any  time  within  twenty  years  after  the  last  payment 
of  the  principal  or  the  interest,  and  mortgages  are  presumed 
to  be  satisfied  at  the  end  of  twenty  years  after  interest  paid 
or  acknowledgment  made.^  The  line  of  distinction  between 
these  two  classes  of  decisions,  it  will  be  perceived,  is  this : 
In  the  one,  the  courts  apply  to  the  mortgage  the  same  period 
of  limitation  which  they  do  to  the  debt  intended  to  be  thereby 
secured ;  in  the  other,  they  adopt  the  same  rule  as  to  the  limi- 
tation of  a  mortgagee's  claim  under  his  mortgage  as  they  do 
to  an  ordinary  claim  to  lands  where  there  has  been  an  adverse 
possession.  Among  the  courts  which  adopt  the  first  rule  are 
those  of  California,  Iowa,  Texas,  where  a  new  promise  to  pay 
the  debt  revives  the  mortgage  lien.'     In  Illinois,  also,  a  mort- 

1  Howard  v.  Hildreth,  18  X.  H.  105  ;  Ballou  v.  Taylor,  14  R.  I.  277.  See  also 
Trustees  Alms  House  Farm  v.  Smith,  52  Conn.  434. 

2  Cheevery.  Perley,  11  Allen,  584. 

8  Tripe  v.  Marcy,  39  N.  H.  439  ;  Noyes  v.  Sturdivant,  18  Me.  104;  Zelleri-. 
Eckert,  4  How.  289,  295  ;  Bacon  v.  Mclntire,  8  Met.  87  ;  Hall  v.  Sartees,  5  B.  & 
A.  687. 

*  If  there  are  several  notes,  the  statute  runs  from  the  maturity  of  the  last. 
Parker  v.  Banks,   79  N.  C.  480. 

*  Aunot.  Code  1892,  §  4733.  And  the  same  rule  is  adopted  in  Kansas.  Chick 
V.  Willetts,  2  Kan.  384. 

6  Wms.  Real  Prop.  373,  374. 

^  Lord  V.  Morris,  18  Cal.  482 ;  Perkins  v.  Sterae,  23  Tex.  561  ;  Ross  v.  Mitchell, 
28  Tex.  150  ;  Gower  v.  Winchester,  33  Iowa,  303 ;  Clinton  Co.  v.  Co.x,  37  Iowa, 
570  ;    Grattan  v.  Wiggins,  23  Cal.   16,  34  ;    Cunningham   v.   Hawkins,  24   Cal. 


164  MORTGAGES. 

gage  cannot  be  enforced  by  ejectment  or  bill  of  foreclosure 
after  the  debt  has  been  barred  by  the  statute  of  limitations, 
on  the  ground  that  the  debt  is  the  principal  thing, ^  A  holder 
under  a  second  mortgage  may,  after  the  same  has  been  fore- 
closed, avail  himself  of  the  statute  of  limitations  against  the 
first  mortgagee. 2  But  the  other  rule  is  by  far  the  most  gen- 
erally adopted.^  The  purchaser  of  a  mortgagor  has  the  same 
right  to  avail  himself  of  the  bar  of  the  statute  of  limitations 
as  the  mortgagor  himself  would  have  had.^  But  in  all  the 
courts,  the  time  from  which  the  period  of  limitation  is  reck- 
oned is  the  breach  of  the  condition  of  the  mortgage.^  And,  in 
respect  to  this,  questions  have  sometimes  arisen,  especially 
in  respect  to  mortgages  given  for  indemnity  to  sureties  of  the 
mortgagor  as  to  what  is  to  be  regarded  as  such  breach.  And 
it  seems  now  to  be  settled,  that  the  statute  begins  to  run  from 
the  time  the  party  indemnified  actually  pays  the  money,  and 
not  from  the  time  when  he  becomes  liable  to  pay  it.^  A 
statute  foreclosure,  obtained  after  the  expiration  of  twenty 
years,  rebuts  the  presumption  of  payment  arising  from  the 
lapse  of  time,'^  and  evidence  for  the  same  purpose  was  allowed, 
showing  the  mortgagor  to  have  been  a  near  relative  of  the 
mortgagee,  and  embarrassed  in  his  circumstances.^ 

§  1119.  Mortgage  survives  Changes  in  Form  of  Debt.  — 
Where  a  mortgage  is  once  made  to  secure  the  payment  of  a 

403.  So  in  Nebraska  and  Nevada.  Peters  v.  Dunnells,  5  Neb.  460 ;  Henry  v. 
Confidence  Co.,  1  Nev.  619. 

1  Medley  v.  Elliott,  62  111.  532  ;  Pollock  v.  Maison,  41  111.  516  ;  Hams  v.  Mills, 
28  111.  44.  Though  it  is  otherwise  if  the  mortgage  contained  a  covenant  under  seal 
to  pay.     Ibid. 

2  Coster  V.  Brown,  23  Cal.  142. 

3  Heyer  v.  Pruyn,  7  Paige,  465,  470,  overruling  Jackson  v.  Sackett,  7  Wend.  97  ; 
Wilkinson  v.  Flowers,  37  Miss.  579  ;  Nevitt  v.  Bacon,  32  Miss.  212,  226;  Pveed  i-. 
Sheplej',  6  Vt.  602  ;  Belknap  v.  Gleason,  11  Conn.  160  ;  Fisher  v.  Mossman, 
11  Ohio  St.  42  ;  Thayer  v.  Mann,  19  Pick.  535;  Ozmun  v.  Eeynolds,  11  Minn. 
459  ;  Birnie  v.  Main,  29  Ark.  591  ;  Wiswell  v.  Baxter,  20  Wis.  680  ;  Ohio  L.  I. 
Co.  V.  Winn,  4  Md.  Ch.  Dec.  253  ;  Ballon  v.  Taylor,  14  R.  I.  277. 

<  McCarthy  v.  White,  21  Cal.  495  ;  Low  v.  Allen,  26  Cal.  141 ;  Lent  v.  Shear, 
id.  361,  365  ;  Caufman  v.  Sayre,  2  B.  Mon.  202. 
^  But  see  ante,  %  1117. 

6  Duncan  v.  McNeill,  31  Miss.  704  ;  Powell  v.  Smith,  8  Johns.  249  ;  Rodman 
V.  Hedden,  10  Wend.  498.     See  post,  §  1182. 

7  Jackson  v.  Slater,  5  Wend.  295. 

8  Wanmaker  v.  Van  Baskirk,  1  N.  J.  Eq.  685. 


OF   THE   mortgagor's   INTEREST.  165 

debt,  the  lien  attaches  in  favor  of  such  debt,  nor  will  any 
change  of  form  of  the  indebtedness  discharge  it  short  of  an 
actual  payment,  satisfaction,  or  release.^  The  giving  of  a 
new  note  for  the  original  one,  thougli  of  a  different  date  and 
for  a  different  amount,  and  running  to  a  different  person, 
unless  intended  as  a  payment  of  the  original  note,  will  not 
affect  the  mortgage  lien.^  So  where  the  indorser  of  a  note 
made  a  mortgage  to  the  indorsee  to  secure  the  payment  of  it, 
and  the  indorsee  failed  to  give  the  indorser  the  notice  requi- 
site to  charge  him  as  indorser,  it  was  held  not  to  affect  his 
security  under  his  mortgage.^  But  if  the  holder  of  a  note 
secured  by  a  mortgage  fraudulently  alter  the  same,  it  defeats 
his  claim  under  the  mortgage.*  And  if  the  mortgagee,  in  the 
execution  of  his  power  of  sale  under  the  mortgage,  acts  un- 
fairly, so  that  an  insufficient  price  is  obtained,  or  the  pur- 
chaser at  such  a  sale  refuses  to  execute  the  deeds,  the 
mortgage  note  will  be  treated  as  paid  and  the  mortgage  dis- 
charged. ^  Where,  however,  a  mortgagor,  having  made  a 
mortgage  to  secure  a  larger  note,  made  a  new  note  to  the 
mortgagee,  and  agreed  that  it  should  be  secured  by  the  mort- 
gage, and  if  paid  should  be  allowed  towards  and  in  payment 
of  the  larger  note  which  remained  unchanged,  it  was  held 
that  such  agreement  did  not  create  any  lien  by  means  of  the 
mortgage  upon  the  premises. ^  But  a  bond  of  a  different  date, 
and  of  a  less  sum  than  that  described  in  the  mortgage,  may 
be  substituted  for  it,  and  thereby  secured,  and  this  may  be 

1  Shuey  v.  Latta,  90  Ind.  136. 

2  Greeny.  Hart,  1  Johns.  580;  Heard  v.  Evans,  1  Freem.  Ch.  79;  Davis  v. 
Maynard,  9  Mass.  242;  Elliot  u.  Sleeper,  2  N.  H.  525  ;  Pomroy  v.  Rice,  16  Pick. 
22  :  Dana  v.  Binney,  7  Vt.  493;  Watkins  v.  Hill,  8  Pick.  522;  Fowler  v.  Bush, 
21  Pick.  230  ;  Williams  v.  Starr,  5  Wis.  534,  548  ;  Dillon  v.  Byrne,  5  Cal.  455, 
457 ;  Barker  v.  Bell,  37  Ala.  354  ;  Donald  v.  Hewitt,  33  Ala.  534  ;  Chase  v. 
Abbott,  20  Iowa,  154;  Parkhurst  v.  Cnmmings,  56  Me.  155;  Port  v.  Robbins, 
35  Iowa,  208 ;  Flower  v.  Elwood,  66  111.  438  ;  Christian  v.  Newberry,  61  Mo. 
446. 

3  Mitchell  V.  Clark,  35  Vt.  104. 

*  Vogle  V.  Ripper,  34  111.  100,  106.  And  if  a  mortgagee  deceives  one  entitled 
to  redeem  as  to  the  rate  of  interest,  he  shall  be  entitled  only  to  the  ordinary  rate. 
May  V.  Gates,  137  Mass.  389. 

^  Howard  v.  Ames,  3  Met.  308  ;  Hood  v.  Adams,  124  Mass.  481  ;  ante, 
§1011. 

6  Grafton  Bk.  v.  Foster,  11  Gray,  265;  Howe  v.  Wilder,  id.  267. 


166  MORTGAGES. 

shown  by  parol.  ^  So  a  renewed  note  attaches  to  it  the  inci- 
dental security  which  the  original  had.^  The  mortgage  se- 
cures the  debt,  not  the  specific  note.^  Nor  will  the  giving 
of  a  recognizance  as  a  substitute  for  such  note  affect  the 
security,  nor  the  recovering  of  a  judgment  for  the  original 
debt,  or  a  commitment  of  the  debtor  to  jail  thereon,  and  dis- 
charge from  such  imprisonment.* 

§  1120.  "What  will  not  discharge  the  Mortgage.  —  A  dis- 
charge of  the  remedy  for  a  debt  by  its  being  barred  by  the 
statute  of  limitations  does  not  discharge  the  mortgage.^  Nor 
does  a  decree  of  discharge  of  the  debtor,  under  an  insolvent 
process,  from  the  payment  of  a  debt  secured  by  a  mortgage, 
discharge  the  mortgage  lien;^  and  even  a  voluntary  release 
of  a  debtor  from  personal  liability  will  not,  it  seems,  dis- 
charge the  mortgage,  or  relieve  another  joint-debtor  from  the 

1  Baxter  v.  Mclntire,  13  Gray,  168  ;  Melvin  v.  Fellows,  33  N.  H.  401.  See 
Hall  V.  Tay,  131  Mass.  192,  194,  that  it  may  be  shown  by  whom  the  advances 
were  made.  So  parol  evidence  is  admissible  to  show  the  amount  of  the  note  to  be 
less  than  the  amount  stated  in  the  mortgage.  Hampd.  Mills  v.  Payson,  130  Mass. 
88.  And  the  mortgage  may  supply  details  which  the  note  is  silent  upon,  and 
wliich  do  not  conflict  with  the  note.  Dobbins  v.  Parker,  46  Iowa,  357  ;  Muzzy  v. 
Knight,  8  Kan.  456. 

2  Cleveland  v.  Martin,  2  Head,  128  ;  Boswell  v.  Goodwin,  31  Conn.  74.  See 
also  Bank  v.  Rose,  1  Strobh.  Eq.  257  ;  Pond  v.  Clarke,  14  Conn.  334  ;  Rogers  u. 
Traders'  Ins.  Co.,  6  Paige,  583. 

3  Boxheimer  v.  Gunn,  24  Mich.  372. 

*  Gary  j;.  Prentiss,  7  Mass.  63.  See  also,  to  the  general  proposition  that  pay- 
ment or  release  alone  discharges  a  mortgage,  Enston  v.  Friday,  2  Rich.  427  ; 
Dunshee  v.  Parmelee,  19  Vt.  172  ;  McDonald  v.  McDonald,  16  Vt.  630  ;  Smith 
V.  Prince,  14  Conn.  472 ;  Pond  v.  Clark,  id.  334  ;  Brinckerhoflf  v.  Lansing,  4  Johns. 
Ch.  65 ;  M'Cormick  v.  Digby,  8  Blackf.  99 ;  Hadlock  v.  Bulfinch,  31  Me.  246  ; 
N.  H.  Bk.  V.  Willard,  10  N.  H.  210  ;  CuUum  v.  Branch  Bk.,  23  Ala.  797  ;  Boyd 
V.  Beck,  29  Ala.  703  ;  Ledyarde  v.  Chapin,  6  Ind.  320  ;  Markell  v.  Eichelberger, 
12  Md.  78  ;  Seymour  v.  Darrow,  31  Vt.  122  ;  Gault  v.  McGrath,  32  Penn.  St.  392  ; 
Applegate  v.  Mason,  13  Ind.  75  ;  Jordan  v.  Smith,  30  Iowa,  500  ;  Hamilton  t;. 
Quimby,  46  111.  90. 

6  Thayer  I).  Mann,  19  Pick.  535  ;  Miller  v.  Helm,  2  Sm.  &  M.  687  ;  Bush  v. 
Cooper,  26  Miss.  599  ;  Bk.  of  Metropolis  v.  Guttschilk,  14  Pet.  19;  Richmond  v. 
Aiken,  25  Vt.  324  ;  Pratt  v.  Huggins,  29  Barb.  277  ;  Fisher  v.  Mossman,  11  Ohio 
St.  42  ;  Joy  r.  Adams,  26  Me.  330  ;  Elkins  v.  Edwards,  8  Ga.  325  ;  Ball  r.  Wyeth, 
8  Allen,  278  ;  Browne  v.  Browne,  17  Fla.  607  :  Taylor  v.  Hunt,  118  N.  C.  168  ; 
s.  c.  24  S.  E.  Rep.  359  ;  Hedrick  v.  Byerly,  119  N.  C.  420  ;  s.  c.  25  S.  E.  Rep. 
1020  ;  Irvine  v.  Shrum,  97  Tenn.  259  ;  s.  c.  36  S.  W.  Rep.  1089.  Though  this  is 
held  otherwise  in  a  few  States.     Ante,  §  1118. 

«  Luning  v.  Brady,  10  Cal.  265. 


OF   THE   mortgagor's   INTEREST.  167 

covenant  contained  in  his  separate  mortgage.^  A  mortgage 
is  not  discharged  by  the  mortgagor  becoming  executor  ^  or 
administrator  of  the  mortgagee.^  Nor  would  it  be,  though 
the  mortgagor  accepted  a  deposit  to  the  amount  of  the  debt,* 
unless  he  makes  use  of  the  same.^  If  a  mortgagor  suffers  the 
land  to  be  sold  for  taxes,  and  purchases  in  the  title  himself, 
he  still  holds  it  subject  to  the  mortgage,^  And  the  taking 
by  the  mortgagee  of  a  new  note  and  mortgage  of  the  same 
land  for  the  same  debt  does  not  discharge  his  prior  mort- 
gage.^ After  the  payment  of  the  mortgage-debt,  the  mortgage 
is  functus  officio;  it  cannot  be  revived  by  a  parol  agreement  to 
keep  it  in  force  in  order  to  secure  another  debt  or  liability.^ 
But  where  the  mortgagee  was  induced  by  fraud  to  give  up  his 
note  and  mortgage  to  the  mortgagor,  and  take  a  new  note 
that  was  worthless,  he  was  allowed  to  pursue  his  remedy  upon 
his  mortgage  as  being  still  valid. ^  And  this  against  a  pur- 
chaser from  the  mortgagor,  who  had  paid  up  a  second  mort- 
gage made  by  the  mortgagor  under  such  circumstances  as 
would  have  given  the  holder  of  that  mortgage  a  preference 
over  the  first,  the  first  mortgage  still  standing  uncancelled 
on  the  record,  of  which   the   purchaser  was  bound   to  take 

1  Donnelly  v.  Simonton,  13  Minn.  301 ;  Tripp  v.  Vincent,  3  Barb.  Ch.  613  ; 
Hayden  v.  Smith,  12  Met.  511  ;  Bentley  v.  Vanderheyden,  35  N.  Y.  677  ;  Walls 
V.  Baird,  91  Ind.  429. 

2  Miller  v.  Donaldson,  17  Ohio,  264  ;  Pettee  v.  Peppard,  120  Mass.  522. 

3  Kinney  v.  Ensign,  18  Pick.  232 ;  Hough  v.  De  Forest,  13  Conn.  472. 
*  Howe  V.  Lewis,  14  Pick.  329. 

6  Toll  V.  Hiller,  11  Paige,  228. 

«  Fr}'e  t'.  Illinois  Bk.,  11  111.  367. 

7  Smith  V.  Stanley,  37  Me.  11  ;  Boyd  v.  Beck,  29  Ala.  703  ;  Cissna  v.  Haines, 
18  Ind.  496. 

8  Mead  V.  York,  6  N.  Y.  449 ;  Hunter  v.  Richardson,  1  Duv.  247 ;  Brooks  v. 
Ruff,  37  Ala.  371  ;  Abbott  v.  Upton,  19  Pick.  434;  Bowman  v.  Manter,  33  N.  H. 
530 ;  Thomas'  App.,  30  Penn.  St.  378  ;  Bonham  i-.  Galloway,  13  111.  68  ;  Kellogg 
V.  Ames,  41  Barb.  218  ;  ante,  §  1082.  See  Claflin  v.  Godfrey,  21  Pick.  1  ;  Joslyn 
V.  Wyman,  5  Allen,  62;  Upton  v.  So.  Read.  Bk.,  120  Mass.  153,  that  mortgagor 
cannot  redeem  without  paying  additional  debts  agreed  to  be  secured  by  the  mort- 
gage. And  though  in  Massachusetts  a  note  is  presumed  to  be  payment,  yet  the 
giving  of  a  new  note  may  be  explained  according  to  the  real  intent  of  the  parties. 
Parham  S.  Mach.  Co.  v.  Brock,  113  Mass.  194. 

9  Grimes  v.  Kimball,  3  Allen,  518 ;  Joslyn  i;.  Wyman,  supra ;  Eyre  v.  Burmes- 
ter,  10  H.  L.  Cas.  90. 


168  MORTGAGES. 

notice.  1  So  where  the  mortgagee  assigned  his  mortgage,  and 
indorsed  the  mortgage-note  to  a  third  person,  but,  before  it 
was  recorded,  purchased  it  back,  and  the  indorser  reindorsed 
it  and  erased  the  assignment,  it  was  held  to  restore  the 
mortgagee  to  his  original  rights.^  On  the  other  hand,  if  the 
mortgagor  pay  the  debt,  he  cannot,  by  having  it  assigned  to 
him,  keep  it  alive  as  against  a  junior  incumbrancer,  though  he 
obtain  a  new  loan,  and  assign  the  first  mortgage  as  a  security 
therefor.^  But  if  a  mortgage  be  made  by  A  for  the  benefit 
and  debt  of  B,  and  the  latter  pay  the  debt,  it  will  not  dis- 
charge the  mortgage,  and  an  assignment  by  the  mortgagee  to 
B  will  make  it  valid  in  his  hand.*  And  it  is  said  that  the 
same  would  hold  true,  even  if  the  mortgagor  paid  off  the 
debt  with  his  own  money,  if  no  third  party  was  prejudiced 
thereby.^  So  where  the  mortgage  was  assigned  to  the  mort- 
gagor by  mistake,  his  assignment  was  held  to  pass  it  to  the 
real  assignee  as  a  valid  instrument.  Thus  A  having  made 
his  bond  and  mortgage  to  B,  and,  B  wishing  his  mone}',  A 
procured  C  to  advance  it  to  B,  with  a  view  of  his  having  the 
bond  and  mortgage  assigned  to  him.  Instead  of  that  they 
were  assigned  to  A,  and  by  him  to  C  ;  and  it  was  held  that 
A  was  but  the  agent  of  B  and  C  in  transacting  the  business, 
and  that  C  was  clothed  with  B's  rights  as  mortgagee.*^  And 
in  Robinson  v.  Urquhart,'  it  was  held  that  if  a  mortgagor  pay 
a  mortgage-debt,  and  there  be  no  intervening  incumbrance, 
he  may  use  the  mortgage  again  to  secure  a  new  creditor;  and 
where  the  real  mortgage-debt  had  been  actually  paid  off, 
another  creditor  may  have  the  right  of  substitution  or  sub- 
rogation, and  the  mortgage  may  be  appropriated  to  secure  a 
debt  to  which  in  its  origin  it  had   no   reference  whatever. 

1  Grimes  v.  Kimball,  8  Allen,  153. 

2  Howe  V.  Wilder,  11  Gray,  267. 

8  Angel  V.  Boner,  .38  Barb.  425,  429  ;  Harbeck  v.  Vanderbilt,  20  N.  Y.  395  ; 
ante,  §  1163  ;  post,  §  1122. 

*  Champney  v.  Coope,  32  N.  Y.  543,  overruling  s.  c.  34  Barb.  539  ;  and  limit- 
ing Harbeck  v.  Vanderbilt,  supra,  to  the  case  of  payment  by  one  of  several  joint 
judgment  debtors.  So  Bascom  v.  Smith,  34  N.  Y.  320 ;  Kellogg  v.  Ames,  41  N.  Y. 
259,  263  ;  Hubbell  v.  Blakeslee,  71  N.  Y.  63,  68. 

*  Champney  v.  Coope,  Hubbell  v.  Blake.slee,  supra, 

«  Angel  V.  Boner,  38  Barb.  429,  430.     See  Starr  v.  Ellis,  6  Johns.  Ch.  393. 
'  12  N.  J.  Eq.  524. 


OP   THE   mortgagor's    INTEREST.  169 

This  doctrine  is  stated  as  from  authority  of  cases  cited,  the 
leading  one  of  which  (Starr  v.  Ellis  ^)  contains  dicta  favoring 
in  some  measure  such  view  of  the  law,  hut  was  decided  the 
other  way.  A  similar  doctrine  was  favored  by  McCoun,  Vice- 
Chancellor,  in  Purser  v.  Anderson,^  but  the  point  was  not 
decided.  It  seems  to  be  opposed  to  the  general  tenor  of  nu- 
merous cases,  and  was  expressly  denied  to  be  law  in  Merrill  v. 
Chase :  "  A  reissue  of  the  note  for  a  valuable  consideration 
could  not  afterwards  convey  a  title  to  the  land  without  a  new 
conveyance  in  mortgage  by  deed.  "'^  So  parol  evidence  is  in- 
admissible, except  for  the  purpose  of  proving  fraud,  to  show 
that  an  express  assignment  of  a  mortgage  was  intended  to  be 
a  discharge,  even  though  offered  by  a  third  party.^ 

§  1121.  Payment  and  Discharge.  —  That  a  mortgage  has 
been  paid,  however,  may  always  be  proved  by  parol,^  or  may 
be  inferred  from  facts  and  circumstances  proved ;  ^  though 
even  the  possession  by  the  mortgagor  of  the  notes  secured  by 
the  mortgage  may  be  explained,  and  any  presumption  of  pay- 
ment therefrom  rebutted."  And  an  entry  of  satisfaction  upon 
the  record,  or  one  made  under  the  seal  of  the  mortgngee,  is, 
as  between  the  oi-iginal  parties,  only  prima  facie  evidence  of 
payment,  and  may  be  explained  and  controlled.^  But  where 
a  mortgagee  negotiated  the  note  secured  by  his  mortgage  to  a 
third  person,  and  then  entered  a  satisfaction  of  his  mortgage 
upon  the  record,  a  bona  fide  purchaser,  not  cognizant  that  the 
note  was  unpaid  and  the  entry  of  satisfaction  unauthorized, 
was  entitled  to  hold  against  the  holder  of  the  note.^     And  it 

1  6  Johns.  Ch.  392. 

2  4  Edw.  Ch.  17,  20. 

*  3  Allen,  339  ;  Joslyn  v.  Wyman,  5  Allen,  63  ;  Bowman  v.  Mauter,  33  N.  H. 
530,  citing  Hudson  v.  Revett,  5  Bing.  368. 

*  Howard  v.  Howard,  3  Met.  548 ;  Tyler  v.  Taylor,  8  Barb.  585. 

6  Den  V.  Spinning,  6  N.  J.  466  ;  Ackia  v.  Ackia,  6  Penu.  St.  228  ;  McDaniels 
V.  Laphani,  21  Vt.  222 ;  Thornton  v.  Wood,  42  Me.  282. 

6  Waugh  V.  Riley,  8  Met.  290  ;  Morgan  v.  Davis,  2  Harr.  &  McH.  9  ;  Deming 
V.  Comings,  11  N.  H.  474. 

7  Smith  V.  Smith,  15  N.  H.  55  ;  Crocker  v.  Thompson,  3  Met.  224. 

8  Fleming  v.  Parry,  24  Penn.  St.  47  ;  Trenton  Bkg.  Co.  i;.  Woodruff,  2  N.  J. 
Eq.  117  ;  Robinson  v.  Sampson,  23  Me.  388. 

9  Cornog  V.  Fuller,  30  Iowa,  212  ;  Hedden  v.  Crowell,  37  N.  J.  Eq.  89.  See 
Viele  V.  Judson,  82  N.  Y.  32  ;  Persons  v.  Shaeffer,  65  Cal.  79  ;  Elizabethport 
Cordage  Co.  v.  Whitlock,  37  Fla.  190  ;  s.  c.  20  So.  Rep.  255- 


170  MORTGAGES. 

is  competent  for  the  court  to  declare  a  discbarge  made  on  the 
records,  which  was  made  by  mistake,  a  nullity.^  Such  is  the 
law  in  New  York.  Where,  therefore,  the  administrator  of  a 
mortgagee  assigned  a  mortgage  and  debt  to  a  bona  fide  pur- 
chaser, and  subsequently  discharged  the  mortgage  upon  the 
record  without  the  knowledge  of  the  assignee,  it  was  held  to 
be  void  as  to  him,  and  as  to  all  persons  except  subsequent 
incumbrancers,  who  become  such  upon  the  faith  of  the  record 
of  the  discharge.  Had  the  assignment  been  recorded  first  the 
discharge  would  have  had  no  effect  upon  the  validity  of  the 
mortgage,  nor  would  it  have  let  in  any  subsequent  incum- 
brancer to  take  in  precedence  of  such  mortgage. ^  And  in 
Joslyn  V.  Wyman,  a  mortgagor  having  paid  the  notes  origi- 
nally secured  by  the  mortgage,  he,  for  a  new  consideration, 
made  notes  answering  to  those  given  up,  and  agreed  that  the 
mortgagee  should  hold  the  mortgage  to  secure  them.  The 
mortgagor  then  conveyed  the  estate  to  another,  having  full 
knowledge  of  the  transaction,  who  applied  to  the  court  to 
obtain  a  discharge  of  the  mortgage.  But  the  court  held,  that 
though  the  transaction  and  agreement  did  not  attach  the  new 
notes  to  the  mortgage  so  as  to  make  it  a  security  for  them  to 
be  enforced  as  a  mortgage,  or  give  it  validity  against  an  at- 
taching creditor,  a  second  mortgagee,  or  bona  fide  purchaser, 
yet  it  laid  the  ground  for  refusing  aid  as  a  court  of  equity, 
and  for  leaving  the  parties  to  their  legal  rights,  though  the 
court  do  not  define  what  those  were.^  So  where  an  assignee 
of  a  mortgage,  after  purchasing  the  equity,  represented  the 
notes  and  mortgage  as  valid,  and  subsisting  to  a  transferee 
without  notice,  he  was  estopped  to  deny  the  continued  exist- 
ence of  the  mortgage.*  Where  the  discharge  of  a  mortgage 
has  been  obtained  by  fraud,  equity  may  treat  the  discharge 
as  a  nullity,  and  revive  the  mortgage.^  A  mortgagee  may 
discharge   the    mortgage   security   upon    the    estate   without 

^  Bruce  v.  Bonney,  12  Gray,  113. 

2  Ely  V.  Scofield,  35  Barb.  330  ;  Heilbran  v.  Hammond,  13  Hun,  474.  See 
Swartz  V.  Leist,  13  Ohio  St.  419. 

*  Joslyn  V.  Wyman,  5  Allen,  62  ;  Stone  v.  Lane,  10  Allen,  74  ;  ante,  §  1082. 

<  Graves  v.  Rogers,  59  N.  H.  452  ;  Internat.  Bk.  v.  Bowen,  80  111.  541  ;  Powell 
V.  Smith,  30  Mich.  451. 

5  Barnes  v.  Camack,  1  Barb.  392. 


OF   THE   mortgagor's   INTEREST.  171 

affecting  the  debt  itself  as  sucli.^*  And  a  mortgage  may 
contain  covenants  running  with  the  land  which  will  survive 
payment  of  the  debt  and  discharge  of  the  security. ^ 

*  Note.  —  In  many  of  the  States  there  is  a  provision  made  for  a  ready  mode 
of  discharging  mortgages  by  a  brief  certiiicate  to  that  eiTect  entered  upon  the 
record  in  the  register's  office.     See  post,  §  1184,  n. 

1  Sherwood  v.  Dunbar,  6  Cal.  53. 

2  Brown  v.  O'Brien,  168  Mass.  484  ;  s.  c.  47  N.  E.  Rep.  195.  And  for  a  con- 
sideration of  what  covenants  run  with  the  land,  see  2}ost,  §  1205. 


172  MORTGAGES. 


CHAPTER  XLVII. 

MORTGAGES  —  MERGER   OF    INTEREST. 

§  1122.  When  the  estates  of  the  mortgagor  aud  mortgagee  merge. 

1123.  The  (question  is  one  of  iiiteiitioii. 

1124.  How  the  interests  must  unite. 

1125.  Redemption  passes  mortgagee's  acquisitions. 

§  1122.  "When  the  Estates  of  Mortgagor  and  Mortgagee 
merge. — It  sometimes  happens  that  the  interests  of  mort- 
gagor and  mortgagee  come  together  in  one  and  the  same  per- 
son, and  then  a  question  often  arises  whether  the  two  have 
become  merged  in  one,  or  remain  still  distinct  interests.  It 
is  generally  true,  that  whenever  a  legal  and  equitable  estate 
in  the  same  land  come  to  one  person  in  the  same  right,  with- 
out an  intervening  interest  outstanding  in  a  third  person,  the 
equitable  merges  in  the  legal  estate,  and  the  latter  alone  re- 
mains subsisting.  But  in  order  to  work  a  merger,  the  mort- 
gagee must  be  the  holder  of  the  mortgage  at  the  time  he 
acquires  the  estate  of  the  mortgagor.  If  he  has  parted  with 
that,  there  would  be  no  merger  by  his  coming  into  the  place 
of  the  mortgagor.  1  In  applying  this  principle  to  mortgages, 
it  makes  no  difference  whether  the  mortgagor  or  his  assigns 
pay  off  the  mortgage  or  take  an  assignment  of  it,  or  the  mort- 
gagor conveys  to  the  mortgagee  by  an  absolute  deed.^  Such 
merger  extinguishes  the  mortgage-debt,  and  the  mortgage 
can  no  more  be  set  up  than  if  it  had  been  fully  paid.^     This 

1  White  V.  Hampton,  13  Iowa,  259. 

2  Gardner  v.  Astor,  3  Johns.  Ch.  53  ;  Starr  v.  Ellis,  6  Johns.  Ch.  393;  James 
V.  Johnson,  id.  417  ;  Burnet  v.  Denniston,  5  Johns,  (ph.  35;  Tud.  Cas.  772,  773  ; 
Wilhelmi  v.  Leonard,  13  Iowa,  330  ;  James  v.  Morey,  2  Cow.  246,  300,  313  ;  Put- 
nam V.  Collamore,  120  Mass.  574  ;  Carlton  r.  Jackson,  121  Mass.  592;  Thompson 
V.  Heywood,  129  Mass.  401. 

8  Gregory  v.  Savage,  32  Conn.  250,  264  ;  Bassett  v.  Mason,  18  Conn.  131  ;  James 
V.  Morey,  2  Cow.  246,  286  ;  Dickason  v.  Williams,  129  Mass.  182,  citing  the  text ; 
Welsh  V.  Phillips,  54  Ala.  309. 


MERGER   OP   INTEREST.  173 

proposition,  however,  is  qualified  by  more  recent  cases  to  this 
extent;  viz.,  if  the  mortgagee  conveys  to  the  mortgagor,  it 
will  be  presumed  to  be  a  satisfaction  and  release  of  the  mort- 
gage. But  if  the  conveyance  be  by  a  mortgagor  to  the  first 
mortgagee,  where  there  is  a  junior  incumbrance  upon  the 
estate,  the  interest  of  the  first  mortgagee,  as  such,  would  not 
be  affected  by  such  a  union  of  interests  in  him.  Whether  it 
shall  work  a  merger  depends  upon  whether  it  is  for  the  inter- 
est of  the  mortgagee.^  If  there  be  two  owners  of  an  equity  of 
redemption,  and  the  mortgage  be  conveyed  or  assigned  to  one 
of  them,  the  mortgage  is  not  thereby  merged ;  it  remains  in 
force,  and  may  be  foreclosed  by  the  assignee  against  his  co- 
tenant  of  the  equity,  or  the  latter  may  redeem  his  interest  in 
the  estate  by  paying  one-half  of  the  mortgage-debt  before  fore- 
closure.'-^ So  if  a  mortgagee  assign  his  mortgage,  and  then 
buy  the  equity  of  redemption,  it  does  not  merge  the  mort- 
gage, though  the  assignment  be  not  recorded.  ^  The  purchaser 
of  an  equity  of  redemption  may  take  an  assignment  of  the 
mortgage,  and  may  keep  the  legal  and  equitable  titles  dis- 
tinct, at  his  election,  if  he  has  any  interest  in  so  doing,  so 
that  they  shall  not  merge  by  unity  of  possession.  And  a 
release  of  an  equity  of  redemption  operates  as  an  extinguish- 
ment of  the  equity  of  redemption,  and  not  as  a  merger  of  the 
estate  conveyed  by  the  mortgage.*  This  can  be  best  illus- 
trated by  a  reference  to  decided  cases,  with  the  additional 
explanation,  that,  in  order  to  work  a  merger,  the  new  estate 
created  by  the  union  of  the  two,  out  of  which  it  is  formed, 
must  be  a  permanent  one,  and  not  defeasible  in  its  nature. 
Thus  where  a  right  of  way  over  one  parcel  belonged  as  appur- 
tenant to  another,  and  the  same  person  acquired  separate 
mortgages  of  these  two  parcels  from  separate  mortgagors,  it 
was  held  not  to  work  a  merger  of  the  easement  until  they 

1  Edgerton  v.  Young,  43  111.  464  ;  Stantons  v.  Thompson,  49  N.  H.  272  ; 
T-ucker  v.  Crowley,  127  Mass.  400  ;  Factors'  Ins.  Co.  v.  Murphy,  111  U.  S.  738. 
But  this  interest  is  controlled  if  to  keep  the  mortgage  or  mortgage-debt  in  force 
would  prejudice  the  rights  of  a  later  incumbrancer,  holder  of  the  equity,  or  other 
party  in  interest.     Swett  v.  Sherman,  109  Mass.  231. 

a  Baker  v.  Flood,  103  Mass.  47. 

8  Campbell  v.  Vedder,  1  Abb.  (N.  Y.)  295. 

*  Clary  v.  Owen,  15  Gray,  525  ;  Loud  v.  Lane,  8  Met.  517  ;  Lyon  v.  Mc II vain, 
24  Iowa,  9,  12 ;  Shin  v.  Fredericks,  56  111.  439,  443. 


174  MORTGAGES. 

should  have  been  foreclosed;  for  had  either  mortgagor  re- 
deemed his  parcel,  it  would  come  back  to  him  with  the 
existing  easement  or  servitude. ^  In  another  case,  one  pur- 
chased an  equity  of  redemption  in  an  estate,  and  then  mort- 
gaged it.  He  then  purchased  in  the  first  mortgage ;  but  it 
was  held  not  to  operate  a  merger  in  him,  because  of  the  inter- 
mediate outstanding  mortgage  created  by  him.^  But  where 
an  equity  of  redemption  was  conveyed  to  a  wife,  and  the 
holder  of  the  mortgage  assigned  his  mortgage  which  came  by 
sundry  mesne  assignments  to  the  wife,  who  failed  to  put  her 
assignment  on  record,  and  her  immediate  assignor  then  made 
a  second  assignment  to  a  third  person,  who  put  the  same  upon 
record,  the  court  intimated  the  opinion,  that  by  the  assign- 
ment to  the  wife  the  interests  were  merged,  and  that  the 
second  assignment  by  her  assignor  was  of  no  effect.^  But  an 
assignment  by  a  mortgagee  of  his  mortgage  to  the  wife  of  the 
mortgagor  does  not  operate  as  a  discharge  of  the  same.*  If 
the  one  paying  the  debt  have  only  an  estate  defeasible  under 
an  executory  devise,  it  will  not  work  a  merger.^  And  where 
it  is  for  the  interest  of  the  holder  of  one  of  these  titles,  upon 
his  acquiring  the  other,  that  they  should  be  kept  distinct  in 
order  that  both  should  be  protected,  they  will  not  be  held  to 
merge,  unless  the  contrary  intent  appears  from  the  language 
of  the  deed ;  as  where,  for  instance,  the  purchaser  of  an  equity 
of  redemption  pays  an  outstanding  mortgage,  made  by  his 
grantor,  in  which  his  wife  had  released  dower,  the  mortgage 
will  not  be  deemed  to  be  merged,  as  it  would  let  in  the  widow 
to  her  full  right  of  dower.^     And  it  may  be  stated  as  a  gen- 

1  Ritger  v.  Parker,  8  Cush.  145,  149  ;  Hancock  v.  Carlton,  6  Gray,  39,  50. 

2  Evans  v.  Kimball,  1  Allen,  240  ;  Cook  v.  Brightly,  46  Penn.  St.  439. 

3  Pickett  V.  Barron,  29  Barb.  505. 

*  Bean  v.  Boothby,  57  Me.  295  ;  Model  L.  Ho.  Assoc,  v.  Boston,  114  Mass. 
133  ;  Comurai.s  v.  Wesselhaft,  id.  530. 

*  Fisher,  Mortg.  447. 

6  See  the  cases  above  cited.  Forbes  v.  Moffat,  18  Ves.  384  ;  Hunt  v.  Hunt, 
14  Pick.  374  ;  Gibson  v.  Crehore,  3  Pick.  475  ;  Eaton  v.  Simonds,  14  Pick.  98  ; 
Hatch  V.  Kimball,  14  Me.  9  ;  St.  Paul  v.  Dudley,  15  Ves.  167  ;  Brown  v.  Lap- 
ham,  3  Cush.  551;  Grover  v.  Thatcher,  4  Gray,  526;  Ca.sey  v.  Buttolph,  12 
Barb.  637  ;  Bell  v.  Woodward,  34  N.  H.  90  ;  Johnson  v.  Johnson,  Walker,  Ch. 
331  ;  Button  v.  Ives,  5  Mich.  515  ;  Thompson  v.  Chandler,  7  Me.  377  ;  Holden 
V.  Pike,  24  Me.  427  ;  Fletcher  v.  Chase,  16  N.  H.  38,  42  ;  James  v.  Morey 
2  Cow.  285,  300  ;  N.  E.  Jewelry  Co.  v.  Merriain,  2  Allen,  392  ;  Savage  v.   Hall, 


MERGER  OP   INTEREST.  175 

eral  principle,  that  although,  where  the  mortgagee  purchases 
in  the  equity,  he  thereby  extinguishes  his  debt  and  mort- 
gage,^ it  will  not  be  so  regarded  if  he  has  been  induced  by 
fraud  to  give  up  his  debt,  or  it  is  necessary  for  the  protection 
of  his  interest  that  the  estates  should  be  kept  distinct.  In 
such  cases  the  doctrine  of  merger  does  not  apply.  Thus, 
where  the  mortgagee  purchased  in  the  equity,  but  it  after- 
wards appeared  that  there  was  a  judgment  lien  upon  it  in 
favor  of  a  creditor  of  the  mortgagor,  it  was  held  not  to  merge 
the  mortgage  so  as  to  let  in  this  lien  upon  the  estate  of  the 
mortgagee.  2  But  where  a  third  mortgagee  paid  the  first,  and 
took  a  deed  of  release  in  express  terms  discharging  the  same, 
it  was  held,  that  he  could  not  set  up  the  first  mortgage  against 
the  claim  of  the  second  mortgagee.  ^ 

§  1123.  The  Question  is  one  of  Intention,  and  the  interests 
will  not  merge,  unless  the  law  finds  such  to  be  the  intention 
of  the  person  in  whom  they  meet,  expressly  declared  or 
clearly  to  be  inferred  from  such  merger  being  to  his  advan- 
tage.'* Thus  where  a  mortgagee  purchased  of  the  mortgagor 
his  equity  of  redemption,  and  gave  up  his  note  secured  by  the 
mortgage,  it  was  held  not  to  operate  as  a  merger  as  against 
an  intervening  attachment  and  levy  for  the  debt  of  the  mort- 
gagor, it  not  being  intended  as  a  payment  of  the  mortgage- 
debt,  and  the  mortgage  not  having  been  actually  discharged." 

§  1124.  How  the  Interests  must  unite.  —  In  order  to  a 
merger,  the  two  interests  must  unite  in  one  and  the  same 
person,  in  the  same  right  at  the  same  time.^     Wherefore  a 

12  Gray,  364,  365  ;  Lock  wood  v.  Sturdevant,  6  Conn.  373 ;  Mallory  v.  Hitchcock, 
29  Conn.  127. 

1  Dickason  v.  Williams,  129  Mass.  182. 

2  Vannice  v.  Bergen,  16  Iowa,  555,  562  ;  T>yon  v.  Mcllvaine,  24  Iowa,  9. 

8  Wade  V.  Howard,  6  Pick.  492  ;  s.  c.  11  Pick.  289  ;  Frazee  v.  Inslee,  2  N.  J. 
Eq.  239  ;  Mansfield  v.  Dyer,  133  Mass.  374. 

*  Knowles  v.  Lawlon,  18  Ga.  476  ;  Waugh  v.  Riley,  8  Met.  290  ;  Loud  v.  Lane, 
id.  517;  Van  Nest  v.  Latson,  19  Barb.  604;  Hutchins  v.  Carleton,  19  N.  H.  487; 
Den  V.  Brown,  26  N.  J.  196  ;  Loonier  v.  Wheelwright,  3  Sandf.  Ch.  135,  157 ; 
Bryar's  App.,  Ill  Penn.  St.  81.  See  Walker  v.  Barker,  26  Vt.  710.  If  the  deed 
of  the  equity  expressly  declares  that  the  interests  shall  not  merge,  they  will  not. 
Abbott  V.  Curran,  98  N.  Y.  665. 

6  N.  E.  Jewelry  Co.  v.  Merriam,  2  Allen,  390. 

8  Pratt  V.  Bennington  Bk.,  10  Vt.  293  ;  Sherman  v.  Abbot,  18  Pick.  448  ; 
Thebaud  v.  Hollister,  37  N.  J.  402. 


176  MORTGAGES. 

mortgagee,  having  occasion  to  purchase  the  equity  of  redemp- 
tion, may  always  keep  alive  the  mortgage  by  taking  a  convey- 
ance of  the  equity  to  a  trustee.  ^  So  where  the  mortgagor 
applied  to  a  third  person  to  loan  him  money,  upon  an  agree- 
ment that  he  should  have  the  mortgage  on  his  estate  then 
outstanding  as  his  securit}',  and  the  money  was  furnished  as 
a  loan,  and  was  delivered  to  the  mortgagor,  who  paid  it  to 
the  mortgagee  and  had  the  mortgage  assigned  in  blank,  it 
was  held  not  to  work  a  merger  in  the  mortgagor's  hands  as 
against  the  one  making  the  loan.^  But  it  may  be  laid  down 
as  universally  true,  that,  where  a  mortgage  has  been  substan- 
tially satisfied,  it  will  never  be  kept  alive  by  equity  to  aid  in 
perpetrating  a  fraud  through  the  forms  of  law,  but  only  for 
the  advancement  of  justice. ^ 

§  1125.  Redemption  passes  Mortgagee's  Acquisitions.  —  If  a 
mortgagee,  as  such,  while  in  possession  of  an  estate,  acquires 
any  rights  or  advantages  in  respect  to  the  same,  and  the  mort- 
gagor redeems  from  him,  the  latter  thereby  acquires  to  him- 
self the  benefit  of  these  advantages.  As,  for  instance,  where 
the  mortgagee  of  a  term  had  acquired  for  himself  a  renewal 
of  the  lease  in  his  own  name,  it  was  held,  that  the  mortgagor, 
by  redeeming  the  mortgage,  acquired  the  benefit  of  such  re- 
newal. In  this  respect,  mortgagees  stand  in  the  relation  of 
trustees  to  the  estate  as  to  deriving  personal  advantage  out 
of  it.* 

1  Bailey  v.  Richardson,  9  Hare,  734  ;  Fisher,  Mortg.  450. 

2  Champney  v.  Coope,  32  N.  Y.  543. 

3  McGiven  f.  Wheelock,  7  Barb.  22  ;  Hinchman  v.  Emans,  1  N.  J.  Eq.  100  ; 
Hutchins  v.  Carleton,  19  N.  H.  487. 

*  Holridge  v.  Gillespie,  2  Johns.  Ch.  30  ;  Slee  v.  Manhattan  Co.,  1  Paige,  48. 


OF   THE   PERSONAL   RELIEVING    THE   REAL    ESTATE.  177 


CHAPTER   XLVIII. 

MORTGAGES  —  OP  THE   PERSONAL  RELIEVING   THE  REAL   ESTATE." 

§  1126.  When  heirs  may  call  on  executors  to  redeem. 

1127.  Devisees  ami  legatees. 

1128.  Insolvency —  Land  in  another  State. 

1129.  Limitations  u[ion  the  heir's  right. 

1130.  Purchaser  of  mere  equity  may  not  claim  relief. 

§  1126.     "When  Heirs  may  call  on  Executors  to  redeem.  —  In 

general  it  may  be  assumed,  where  there  is  no  specific  legis- 
lation upon  the  subject,  that  an  heir  at  law  of  a  mortgagor 
may  call  upon  the  executor  or  administrator  to  discharge  the 
mortgage  upon  the  real  out  of  the  personal  estate,  on  the 
ground  that  the  personal  estate  had  the  benefit  of  the  money 
for  the  security  of  which  the  mortgage  was  given,  and  qui 
sentit  commodum  sentire  debet  et  onus,  or  "that  that  should 
have  the  satisfaction  that  sustained  the  loss;"^  and  this  was 
extended  to  a  widow  in  favor  of  her  dower,  in  an  estate  mort- 
gaged to  secure  the  purchase-money  ;2  though  the  holder  of 
the  mortgage  is  affected  by  no  such  consideration,  and  is  not 
obliged  to  seek  his  satisfaction  out  of  the  personal  estate.^ 

§  1127.  Devisees  and  Legatees.  —  So,  as  a  general  proposi- 
tion, a  devisee  of  the  real  estate  stands,  in  this  respect,  in 
the  situation  of  an  heir.'*  But  the  principle  is  adopted  in 
favor  of  these  alone,  and  only  against  executors,  administra- 

1  2  Crabb,  Real  Prop.  914  ;  Cope  v.  Cope,  2  Salk.  449,  and  cases  cited  in  the 
note  ;    Broom's  Maxims,  560. 

2  Henagan  v.  Harllee,  10  Rich.  Eq.  285. 

8  Trustees  v.  Dickson,  1  Freem.  (Miss.)  Ch.  474  ;  Patton  v.  Page,  4  Hen.  & 
M.  449. 

*  Goodburn  v.  Stevens,  1  Md.  Ch.  Dec.  420  ;  Cumberland  v.  Codrington, 
3  Johns.  Ch.  229  ;  King  v.  King,  3  P.  Wms  358;  Lanoy  v.  Athol,  2  Atk.  444; 
2  Crabb,  Real  Prop.  914.  Though  the  real  estate  be  devised  subjet't  to  jiayment 
of  debts.  Lupton  v.  Lupton,  2  Johns.  Ch.  614  ;  Livingston  v.  Newkirk,  3  Johns. 
Ch.  312  ;  Ancaster  i-.  Mayer,  1  Bro.  C.  C.  454  ;  Lockhart  v.  Hardy,  9  Beav.  379. 
Unless  the  real  estate  be  directed  to  be  sold  to  pay  debts,  and  the  personal  be 
expressly  bequeathed.  1  Story,  Eq.  Jur.  572. 
VOL.    II. —  12 


178  MORTGAGES. 

tors,  and  residuary  legatees,  or  next  of  kin  of  such  mort- 
gagor. It  does  not  avail  against  legatees,  general  or  specific, 
nor  against  creditors.^  Nor  have  devisees  of  mortgaged  prop- 
erty a  right  to  call  on  executors  to  redeem  as  against  devisees 
of  other  property. ^ 

§  1128.  Insolvency  —  Land  in  another  State.  — If  the  estate 
of  a  deceased  mortgagor  be  insolvent,  the  courts  will  not  apply 
the  personal  to  relieve  the  real  estate.^  Nor  can  an  executor 
or  administrator  be  compelled  to  apply  personal  assets  found 
in  one  State  to  relieve  real  estate  situate  in  another  jurisdic- 
tion.* But  where  an  administrator,  not  knowing  the  land  of 
his  intestate  to  be  under  mortgage,  sold  it  by  leave  of  court 
as  unincumbered,  he  was  allowed  to  apply  enough  of  the  pro- 
ceeds to  satisfy  the  outstanding  mortgage  upon  the  same,  it 
being  the  only  way  in  which  he  was  able  to  make  a  good  title 
to  the  estate.^ 

§  1129.  Limitations  upon  the  Heir's  Right.  —  If  an  heir  sell 
an  equity  of  redemption  that  descends  to  him,  without  exer- 
cising his  common  law  right  to  have  the  mortgage  paid  out  of 
the  personal  estate,  he  cannot  afterwards  call  upon  that  for 
relief  or  aid.^  And  the  rule  in  New  York  is,  in  all  cases, 
that,  where  a  mortgaged  estate  descends  to  an  heir  or  passes 
to  a  devisee,  he  takes  it  charged  with  the  mortgage,  and  is  to 
satisfy  it,  unless  there  be,  in  the  case  of  a  devise,  an  express 
direction  to  the  contrary.'^  Nor  will  a  general  direction  to 
pay  the  testator's  just  debts  be  sufficient,  under  their  statute, 
to  throw  the  mortgage-debt  upon  the  personalty.^ 

§  1130.  Purchaser  of  Mere  Equity  may  not  claim  Relief.  — 
Wherever  the  holder  of  an  equity  of  redemption  has  acquired 

1  Coote,  Mortg.  467,  468  ;  Cope  v.  Cope,  2  Salk.  449  ;  Torr's  Estate,  2  Eawle, 
250  ;  Mansell's  Estate,  1  Parsons,  Eq.  Cas.  367  ;  Adams,  Eq.  Jur.  (3d  Am,  ed.) 
274,  n. 

2  Gibson  v.  McCormick,  10  Gill  &  J.  65  ;  Mason's  Est.,  4  Penn.  St.  497. 

3  Gibson  v.  Crehore,  3  Pick.  475. 
*  Haven  v.  Foster,  9  Pick.  112. 

5  Church  V.  Savacje,  7  Cush.  440. 

6  Haven  v.  Foster,  9  Pick.  112. 

7  Mosely  v.  Marshall,  27  Barb.  42  ;  Lalor,  Real  Est.  308.  See  a  similar  statute, 
17  &  18  Vict.  c.  113  ;  Fisher,  Mortg.  398  ;  Wright  v.  Holbrook,  32  N.  Y.  587, 
though  otherwise  with  a  vendor's  lien  ;  2  Story,  Eq.  (Redfield'.s  ed.)  §  1248  c. 

8  Rapalye  v.  Rapalye,  27  Barb.  610. 


OP   THE   PERSONAL   RELIEVING   THE   REAL   ESTATE.  179 

it  by  purchase,  in  the  popular  sense  of  that  term,  he  takes  it 
for  what  it  is,  —  a  mere  right  to  become  possessed  of  the 
estate  by  paying  the  incumbrance  upon  it,  and  that  alone  is 
what  he  has  paid  for.  He  has  no  right  in  equity  to  call  upon 
any  other  fund  to  relieve  his  own  estate.  Thus,  where  a  tes- 
tator purchased  an  estate  subject  to  a  mortgage,  and  made  a 
personal  agreement  with  the  mortgagor  to  pay  the  debt,  and 
then  devised  the  estate,  it  was  held  that  the  debt  was  a 
charge  upon  the  real  estate  only,  and  the  devisee  could  not 
call  on  the  personal  estate  to  relieve  it.^  And  though  the 
rule  of  the  common  law  is  as  above  stated,  that,  where  the 
mortgagor  himself  contracts  the  debt,  the  mortgage  is  col- 
lateral to  the  debt,  and  the  personalty  is  bound  to  relieve  it; 
yet,  if  the  original  debt  was  that  of  another,  the  testator,  by 
devising  the  estate,  does  not  charge  the  payment  of  the  debt 
upon  his  personal  estate,  unless  he  does  so  expressly  by  his 
wilL2* 

*  Note.  —  In  England,  b}'  statute  17  &  18  Vict.  c.  118,  heirs  or  devisees  who 
now  take  mortgaged  estates  by  descent  or  devise  cannot  call  on  the  personal  estate 
or  other  real  estate  to  satisfy  the  mortgage-debt.  Each  part  of  the  land  charged 
by  mortgage  bears  its  dae  proportion  of  the  charge,  unless  the  will  by  which  the 
devisee  takes  directs  otherwise.     Wms.  Real  Prop.  362. 

1  Cumberland  v.  Codrington,  3  Johns.  Ch.  229  ;  Tweddell  v.  Tweddell,  2  Bro. 
C.  C.  101 ;  Crowell  v.  St.  Barnabas  Hosp.,  27  N.  J.  Eq.  650,  653. 

2  2  Crabb,  Real  Prop.  914,  915,  n.  ;  Cumberland  v.  Codrington,  3  Johns.  Ch. 
229,  257. 


180  MORTGAGES. 


CHAPTER  XLIX. 

MORTGAGES  —  OF   CONTRIBUTION   TO   REDEEM. 

§  1131.  General  doctrine  of  contribution. 

1132.  General  doctrine,  continued. 

1133.  Illustrations. 

1134.  Mortgagor  cannot  call  on  his  grantees. 

1135.  How  equities  are  settled  —  Marshalling  assets. 

1 136.  Rule  of  inverse  order  —  Conflict. 

1137.  Rule  inapplicable  in  special  cases. 

1138.  Personal  liability  of  purchaser  or  mortgagee  of  land  already  mortgaged. 

1139.  Purchaser's  liability  at  law  and  in  equity. 

1140.  Mortgagor's  remedy  against  assuming  purchaser. 

1141.  Subrogation  to  enforce  contribution. 

1142.  Contribution,  how  compelled  where  equities  are  equal. 

1143.  Surety's  equity  to  be  subrogated. 

1144.  Difference  between  subrogation  and  assignment. 

1145.  Subrogation  in  favor  of  mortgagor. 

1146.  Effect  upon  surety  of  impairing  his  equity  to  subrogation. 

1147.  Marshalling  the  securities. 

§  1131.  General  Doctrine  of  Contribution.  —  It  is  a  well-set- 
tled  rule  in  equity,  that,  where  land  is  charged  with  a  burden, 
each  portion  of  the  estate  should  bear  its  equal  share  of  such 
a  charge  ;  and  if  the  owner  of  one  part,  in  order  to  protect  his 
share,  is  obliged  to  pay  a  common  charge  upon  his  own  and 
another's  share  of  the  estate,  he  may  call  upon  the  other  owner 
to  contril)ute  pro  rata  towards  the  amount  thus  paid.^  But 
this  doctrine  obviously  can  apply  only  when  the  equities  of  the 
parties  in  interest  are  equal,  and  may  be  controlled  by  agree- 
ment, provided  all  these  parties  assent.    Thus,  suppose  a  cred- 

1  Stevens  v.  Cooper,  1  Johns.  Ch.  425  ;  Story,  Eq.  Jur.  §  477 ;  Cheesebrough 
V.  Millard,  1  Johns.-Ch.  409;  Lawrence  v.  Cornell,  4  Johns.  Ch.  542  ;  Gibson  v. 
Crehore,  5  Pick.  146  ;  Chase  v.  Woodbury,  6  Cush.  143  ;  Salem  v.  Edgerly,  33 
N.  H.  46.  Thus,  where  two  tenants  in  common  made  a  joint  mortgage  of  their 
common  estate,  and  then  made  partition,  and  the  share  set  off  to  one  was  sold  at  a 
sheriff's  sale,  the  purchaser,  having  been  obliged  to  pay  the  whole  mortgage-debt, 
had  contribution  against  the  mortgagor,  who  owned  the  other  half  of  the  estate. 
Stroud  I'.  Casey,  27  Penn.  St.  471 ;  Briscoe  v.  Power,  47  111.  447. 


OF  CONTRIBUTION  TO  REDEEM.  181 

iter  holds  a  mortgage  upon  two  different  estates,  either  of  them 
amply  sufficient  to  secure  one  debt,  Tiiere  would  be  no  diffi- 
culty in  so  arranging  between  the  mortgagor  and  mortgagee 
that  the  latter  should  release  and  give  up  iiis  lien  upon  one  of 
these  estates,  and  rely  wholly  upon  the  other  as  security  for 
his  entire  debt.  And  any  one  who  should  come  into  the  place 
of  either  would  taivC  such  rights  as  his  grantor  had  in  respect 
to  these  estates.^ 

§  1182.  General  Doctrine,  continued.  —  But  suppose,  before 
this  change  had  been  made,  a  third  person,  as  a  creditor,  or 
purchaser,  or  mortgagee,  had  acquired  a  lien  upon  the  parcel 
thus  left  charged,  no  arrangement  between  the  original  mort- 
gagor and  mortgagee  could  change  this  party's  rights,  or  shift 
the  proportion  of  the  original  debt  with  which  the  parcel  should 
be  charged.^ 

§  1133.  Illustrations.  —  The  case  of  Stevens  v.  Cooper  may 
serve  to  illustrate  this  question.  In  that  case,  one  R.  had 
mortgaged  six  parcels  to  Cooper  to  secure  a  single  debt, 
Cooper  at  the  time  agreeing  with  him  to  release  any  of  these 
lots  to  any  purchaser  to  whom  R.  might  sell  if  he,  Cooper, 
should  be  paid  a  certain  sum  per  acre.  R.  sold  lot  No.  82  to 
Stevens,  who  agreed  with  Cooper  by  parol  to  pay  him  so  much 
per  acre  if  he  would  release  the  lot.  The  widow  and  heirs  of 
Stevens  paid  Cooper  a  part  of  this  amount  in  1801,  and  he 
gave  them  a  receipt  as  for  so  much  paid  towards  the  mortgage, 
to  be  applied  to  the  discharge  of  lot  No.  82.  After  the  sale  to 
Stevens,  R.  sold  four  other  lots,  and  the  purchasers  received 
from  Cooper  releases  of  the  same,  in  which  he  reserved  the 
mortgage  to  be  in  full  force  on  lot  82  and  the  other  of  the  six 
lots.  This  was  in  1797.  But  the  Chancellor  held,  that  by 
discharging  the  four  lots  he  deprived  the  owners  of  the  other 
two  of  the  right  to  call  upon  their  owners  if  they  paid  the 
whole  mortgage,  and  that  the  holder  of  the  mortgage  could 
only  hold  lot  No.  82  till  he  had  received  for  the  redemption 

1  Cheesebrough  v.  Millard,  1  Johns.  Ch.  409  ;  Johnson  v.  Rice,  8  lie.  157, 
161 ;  Pool  V.  Marshall,  48  111.  440.  So  where  with  the  assent  of  the  holder  of  the 
equity  part  of  the  land  was  released  by  a  second  mortgagee,  who  had  taken  his 
mortgage  from  that  holder,  and  the  proceeds  were  applied  on  the  first  mortgage  ; 
this  was  held  no  defence  to  the  holder's  liability  on  the  second  mortgage  note. 
Williams  v.  Wilson,  124  Mass.  257  ;  Hawhe  v.  Snydaker,  86  111.  197. 

2  Powell,  Mortg.  346,  n.  ;  Parkman  v.  Welch,  19  Pick.  231. 


182  MORTGAGES. 

thereof  a  sura  bearing  the  same  proportion  to  the  whole  mort- 
gage-debt as  the  value  of  that  lot,  at  the  time  of  the  making 
of  the  mortgage,  bore  to  the  value  of  the  whole  six.i  A  simi- 
lar doctrine  was  held  in  Parkman  v.  Welch,  where  two  parcels 
of  land  were  mortgaged  for  a  single  debt,  and  one  of  these 
parcels  the  mortgagor  conveyed  to  A,  and  another  to  B.  The 
mortgagee  gave  A  a  release ;  and  when  he  sought  to  hold  B's 
parcel  for  the  entire  debt,  it  was  held  that  he  could  charge  it 
only  pro  rata?  [But  to  have  this  effect,  the  partial  release  by 
the  mortgagee  must  have  been  made  with  notice  of  the  liens 
or  conveyances  subsequent  to  his  mortgage,^  and  the  mere 
fact  that  such  subsequent  liens  or  conveyances  have  been 
recorded  is  not  notice.*] 

§  1134.  Mortgagor  cannot  call  on  his  Grantees.  —  But  if, 
when  the  mortgagor  has  mortgaged  two  parcels  to  secure  one 
debt,  he  sells  one  of  these,  and  either  he  or  his  heirs  then  pay 
the  mortgage-debt,  he  or  they  cannot  call  upon  the  grantee  of 
the  parcel  conveyed  for  contribution.^ 

§  1135.  How  Equities  are  settled  —  Marshalling  Assets.  — 
Whether,  therefore,  the  holder  of  one  of  several  mortgaged 
parcels  shall  be  liable  to  contribute  to  a  holder  of  another, 
depends  upon  the  equities  under  which  they  severally  hold 
their  respective  parcels.  If  their  equities  are  equal,  each  is 
liable  to  contribute  to  the  other  who  has  paid  the  debt.  A 
mortgagor  himself  could  not  call    upon  his  grantee,  because 

1  Stevens  v.  Cooper,  1  Johns.  Ch.  425. 

2  Parkman  v.  Welch,  19  Pick.  231  ;  Stuyvesant  v.  Hall,  2  Barb.  Ch.  151  ; 
Paxton  V.  Harrier,  11  Penn.  St.  312  ;  Johnson  v.  Rice,  8  Me.  157  ;  Deuster  v. 
McCamns,  14  Wis.  307  ;  Hawhe  v.  Snydaker,  86  111.  197  ;  Wore.  Sav.  Bk.  v. 
Thayer,  136  Mass.  459  ;  and  if  the  released  land  eqnals  in  value  the  mortgage,  a 
complete  discharge,  ibid.  ;  Gaskill  v.  Sine,  13  N.  J.  Eq.  400  ;  Cogswell  v.  Stout, 
32  N.  J.  Eq.  240  ;  Insurance  Co.  v.  Huder,  35  Ala.  713  ;  Union  Nat.  Bk.  of 
Oshkosh  V.  Milburu  &  Stoddard  Co.,  7  N.  D.  201  ;  s.  c.  73  N.  W.  Rep.  527  ; 
Ellis  V.  Fairbanks,  infra.  Tbe  same  result  follows  the  mortgagee's  release  of  the 
mortgagor  personally.  Coyle  v.  Davis,  20  Wis.  564  ;  Sexton  v.  Pickett,  24  Wis. 
346. 

3  Ellis  V.  Fairbanks,  38  Fla.  257  ;  s.  c.  21  So.  Rep.  107  ;  Woodward  i'.  Brown, 
119  Cal.  283;  s.  c.  51  Pac.  Rep.  2. 

*  George  v.  Wood,  9  Allen,  80  ;  Van  Orden  v.  Johnson,  14  N.  J.  Eq.  376  ; 
Blair  v.  Ward,  10  N.  J.  Eq.  119  ;  Brown  v.  Simons,  44  X.  H.  475. 

6  Allen  V.  Clark,  17  Pick.  47  ;  Chase  v.  Woodbury,  6  Cush.  143  ;  Bradley  v. 
George,  2  Allen,  392 ;  Johnson  v.  Williams,  4  Minn.  260  ;  Lock  i;.  Fulford,  52 
111.   166,   169. 


OF    CONTRIBUTION    TO    REDEEM.  183 

originally  he  was  himself  liable  for  the  whole  debt  ;i  nor  could 
an  heir  of  the  mortgagor,  "  for  he  sits  in  the  seat  of  his  ances- 
tor." ^  Nor  could  a  purchaser  of  an  equity  of  redemption  call 
upon  a  prior  purchaser,  with  warranty,  of  a  parcel  of  the  prem- 
ises from  the  same  grantor.^  Nor  can  any  subsequent  pur- 
chaser call  upon  a  prior  one,  where  the  several  purchasers  can 
be  regarded  as  standing  in  the  place  of  the  mortgagor  with 
his  rights  at  the  time  of  the  date  of  his  purchase^  Tiie  rule 
generally  applied  in  equity  in  the  case  last  supposed  is,  that 
parts  of  a  mortgaged  estate  which  have  been  conveyed  in  suc- 
cession are  liable  for  the  debt  in  an  inverse  order  of  their 
alienation,  the  last  conveyed  being  the  first  to  pay  ;^  and  the 
mortgagee  must  exhaust  the  last-conveyed  parcel  before  he 
can  resort  to  a  prior  one  upon  which  to  enforce  his  mort- 
gage ;  ^  whereas,  if  conveyed  simultaneously,  they  are  to 
contribute  their  due  proportion."  So  it  would  be  if  the  deeds 
conveying  the  equity  subjected  the  several  parcels  to  the  in- 
cumbrance of  the  mortgage.^     If  several  lots  covered  by  the 

1  Cliase  V.  Woodbury,  6  Cush.  14-3  ;  Story,  E.^.  Jur.  §  1233  a  ;  Fleetwood's  & 
Aston's  Case,  Hob.  45. 

2  Harbert's  Case,  3  Rep.  11  ;  Harvey  v.  Woodliouse,  Select  Gas.  in  Ch.  3,  4  ; 
Aldrich  i'.  Cooper,  2  White  &  Tud.  Lead.  Cas.  Pt.  1,  49 ;  Clowes  v.  Dickenson, 
5  Johns.  Ch.  235  ;  Beard  v.  Fitzgerald,  105  Mass.  134. 

3  Gill  V.  Lyon,  1  Johns.  Ch.  447,  where  one  Wells  mortgaged  his  estate,  then 
sold  a  parcel  with  warranty  ;  after  which  his  estate  in  the  residue  was  sold  on 
execution  to  the  plaintiff  Gill,  who  paid  the  mortgage  and  claimed  contribution 
of  Lyon,  which  was  disallowed  by  the  court.  Clowes  v.  Dickenson,  5  Johns  Ch. 
235  ;  Porter  v.  Seabor,  2  Root,  146 ;  Aiken  i-.  Gale,  37  N.  H,  501. 

*  Chase  v.  Woodbury,  6  Cush.  143  ;  Holden  v.  Pike,  24  Me.  427  ;  Randell  v. 
Mallett,  14  Me.  51  ;  Gushing  v.  Ayer,  25  Me.  383  ;  Lock  v.  Fulford,  52  111.  166, 
169;  Tompkins  v.  Wiltberger,  56  111.  385,  391. 

&  Story,  Eq.  Jur.  §  1233  a  ;  Stoney  v.  Shultz,  1  Hill,  Ch.  500  ;  Jenkins  v. 
Freyer,  4  Paige.  47  ;  Guion  v.  Knapp,  6  Paige,  35  ;  Skeel  v.  Spraker,  8  Paige, 
182;  Schryver  v.  Teller,  9  Paige,  173;  Hartley  v.  O'Flaherty,  Lloyd  &  G.  Cas. 
temp.  Plunket,  208,  216  ;  Howard  Ins.  Co.  v.  Halsey,  4  Sandf.  565;  Donley  r. 
Hays,  17  S.  &  R.  400  ;  Plant.  Rk.  v.  Dunda.s,  10  Ala.  661  ;  Gumming  v.  Gumming, 
3  Ga.  460  ;  Stuyvesant  v.  Hall,  2  Barb.  Ch.  151  ;  Fergu.son  v.  Kimball,  3  Barb. 
Ch.  616;  Kellogg  v.  Rand,  11  Paige,  59;  Black  v.  Morse,  7  N.  J.  Eq.  509;  Henkle 
V.  Allstadt,  4  Gratt.  284  ;  Jones  v.  Myrick,  8  Gratt.  179  ;  Gates  v.  Adams,  24  Vt. 
70;  Adams,  Eq.  Jur.  (3d  Am.  ed.)  p.  270,  n.  E  ;  Inglehart  v.  Crane,  42  111.  261  ; 
McKinney  v.  Miller,  19  Mich.  142,  156.  And  for  other  late  cases  to  the  same 
effect,  see  aafc,  §  1133,  n. 

6  Tompkins  v.  Wiltberger,  56  111.  385. 

■^  Chase  v.  Woodbury,  6  Cush.  143. 

8  Briscoe  v.  Power,  47  111.  447. 


184  MORTGAGES. 

same  mortgage  are  conveyed  to  different  purchasers,  and  the 
mortgagee  releases  one  of  these,  he  will  thereby  discharge  all 
the  other  parcels,  pro  rata,  to  the  extent  to  which  such  parcel 
was  originally  chargeable,  provided  the  equities  of  each  are 
equal. ^ 

§  1136,  Rule  of  Inverse  Order  —  Conflict.  —  But  the  authori- 
ties are  not  entirely  in  accord  upon  the  subject  of  marshalling 
the  securities  in  the  inverse  order  in  which  the  land  was  con- 
veyed, as  above  described.  All  the  cases  agree,  that  so  far 
as  the  mortgagor  himself  is  concerned,  the  debt  being  a  per- 
sonal duty,  if  he  pays  it  he  has  no  right  to  call  upon  the  pur- 
chaser of  a  part  of  the  mortgaged  premises,  while  he  himself 
retains  a  part,  to  contribute  towards  such  debt.^  The  cases 
further  agree,  that,  if  the  equities  between  two  or  more  per- 
sons in  respect  to  an  incumbrance  upon  their  estates  are 
equal,  each  must  share  his  own  proportion  in  relieving  these 
estates.^  The  question,  therefore,  between  the  two  classes  of 
decisions  above  referred  to  has  been,  whether  the  equities  of 
successive  purchasers  of  parts  of  a  mortgaged  estate  in  re- 
spect to  the  incumbrance  are  equal,  or  one  is  prior  or  superior 
to  the  other.  The  ground  upon  which  the  latter  doctrine  rests 
seems  to  be  this :  When  the  mortgagor  parted  with  one  par- 
cel of  his  estate,  reserving  the  remainder,  he,  as  to  his 
grantee,  charged  the  entire  debt  upon  that  part  which  he 
retained.  And  when  he  sold  that,  or  any  part  of  it,  the  pur- 
chaser had  in  respect  to  it  no  better  rights  than  himself,  and 
consequently  took  it  subject  to  the  debt,  without  any  right  to 
call  on  the  prior  purchaser  for  contribution.  On  the  other 
hand,  the  idea  that  the  equities  in  such  a  case  are  equal 
seems  to  rest  upon  these  considerations :  When  the  succes- 
sive purchasers  took  deeds  of  their  lands,  they  all  knew  them 

1  Taylor  v.  Short,  27  Iowa,  361.  Provided  the  releasor  had  notice,  not  by- 
record,  of  the  equities  of  tlie  purchasers.     See  ante,  §  1133. 

2  Chase  v.  Woodbury,  6  Cush.  143,  147  ;  Allen  v.  Clark,  17  Pick.  47,  55.  But 
this  is  a  personal  duty  only  in  respect  of  the  parcel  retained,  and  the  mortgagor 
who  has  bought  from  a  prior  purchaser  may  enforce  such  purchaser's  right  against 
a  later  purchaser  of  the  parcel  retained.  Powles  v.  Griffith,  37  N.  J.  Eq.  384, 
386. 

8  Salem  v.  Edgerly,  33  N.  H.  46,  50  ;  Allen  v.  Clark,  17  Pick.  47  ;  Stevens  v. 
Cooper,  1  Johns.  Ch.  425  ;  Aiken  v.  Gale,  37  N.  H.  501  ;  Gibson  v.  Crehore, 
5  Pick.  146,  152. 


OP  CONTRIBUTION  TO  REDEEM.  185 

to  be  under  a  mortgage ;  they  all  expected  the  mortgagor,  lie 
being  the  debtor,  would  pay  the  debt,  and  took  from  him 
covenants  to  that  effect,  each  paying  the  full  value  of  the 
estate  as  if  unincumbered ;  each,  therefore,  relied  upon  the 
mortgagor  to  pay  the  debt;  and  so  far  as  they,  by  their  lands, 
were  sureties  for  such  a  payment,  they  stood  towards  the 
mortgagor  in  the  light  of  sureties,  having  the  rights  of  sure- 
ties between  each  other,  by  which,  by  a  familiar  rule  of 
equity,  if  any  one  of  them  paid  the  debt,  he  became  entitled 
to  hold  the  whole  property  mortgaged  until  the  owners  of  the 
other  parts  than  his  own  contributed  their  respective  shares 
of  the  redemption-money.  1  The  point  of  difference,  there- 
fore, between  those  who  maintain  these  doctrines,  seems  to 
be,  whether  the  equities  of  the  parties  shall  be  determined  by 
an  arbitrary  rule  of  law,  or  by  what  the  parties  understood 
and  expected  when  they  became  the  purchasers.  Judge  Story 
favored  the  latter  of  these  doctrines.  Mr.  Rcdficld,  the  able 
and  learned  annotator  and  editor  of  his  later  edition,  strongly 
inclined  to  maintain  the  former  doctrine. ^  Among  the  courts 
of  the  several  States  that  sustain  the  prior  equity  of  the  ear- 
liest purchaser  are  those  of  Alabama,  Georgia,  Illinois,  In- 
diana, Michigan,  Minnesota,  New  Hampshire,  New  Jersey, 
New  York,  Pennsylvania,  South  Carolina,  Virginia,  Wiscon- 
sin ;  and  to  these  Massachusetts,  Florida,  North  Dakota,  Cali- 
fornia, and  probably  Maine,  may  now  be  added ;  while  a  case 
from  the  Irish  courts  goes  to  sustain  the  same  point. ^     On  the 

1  Post,  §  1143. 

2  Story,  Eq.  §  1 233  h,  and  note. 

8  Cowden's  Est.,  1  Penn.  St.  267,  277,  where  the  court  deny  that  the  authorities 
cited  by  Story,  J.,  with  one  exception,  sustain  his  doctrine  ;  Patty  v.  Peasp,  8  Paige, 
277,  in  which  it  is  said  to  be  a  mere  rule  in  equity  ;  Nailer  v.  Stanley,  10  S.  &  R. 
450;  Day  v.  Patterson,  18  Ind.  114,  where  it  is  stated  as  probably  the  rule  of  law  ; 
Shannon  v.  Marselis,  1  N.  J.  Eq.  413,  421  ;  Gaskill  v.  Sine,  13  N.  J.  400  ;  Johnson 
V.  Williams,  4  Minn.  260  ;  Lyman  v.  Lyman,  32  Vt.  79.  See  Gates  v.  Adams, 
24  Vt.  70  ;  Brown  v.  Simons,  44  N.  H.  475  ;  45  id.  211  ;  Mclntire  v.  Parks, 
59  N.  H.  258  ;  Huntly  v.  O'Flaherty,  Lloyd  &  G.  Cas.  temp.  Plunket,  215  ;  Holden 
V.  Pike,  24  Me.  427 ;  Gushing  v.  Ayer,  25  Me.  383  ;  Sheperd  v.  Adams,  32  Me.  63. 
See  also  Salem  v.  Edgerly,  33  N.  H.  46  ;  Aiken  v.  Gale,  37  N.  H.  501.  Also 
Presb.  Co.  v.  Wallace,  3  Rawle,  165,  the  doctrine  of  which  is  impugned  b}' 
Cowden's  Est.,  supra;  Plant.  Bk.  v.  Dundas,  10  Ala.  661  ;  Mobile  Dock  Co.  v. 
Kuder,  35  Ala.  717,  721;  Cumming  v.  Gumming,  3  Ga.  460;  Aiken  v.  Bruen, 
21  Ind.  137  ;  Mason  v.  Payne,  Walker,  Ch.  459  ;  Ireland  v.  Woolmau,   15  Mich. 


186  MORTGAGES. 

other  hand,  the  courts  of  the  following  States  either  assume 
the  equities  between  the  purchasers  in  such  a  case  to  be  equal, 
or  sustain  the  doctrine  by  elaborate  opinions;  viz.,  Ohio, 
Kentucky,  Tennessee,  Iowa,  and  North  Carolina.  And  so 
does  one  of  the  English  chancery  cases.  ^  In  a  case  in  New 
Hampshire,  the  court  say:  "It  must  be  considered  as  settled, 
that,  when  the  owner  of  an  equity  of  redemption  conveys  by 
deed  of  warranty  a  part  of  the  mortgaged  premises,  neither 
he  nor  his  heirs,  nor  subsequent  grantees,  with  notice  of  the 
remaining  part  of  the  mortgaged  premises,  are  entitled  to 
contribution  from  the  first  grantee  towards  payment  of  the 
mortgage-debt."  But  this  doctrine  only  applies  to  purchasers 
in  succession  from  the  mortgagor,  and  not  to  titles  acquired 
from  the  grantee  of  a  mortgagor  who  had  purchased  his  en- 
tire interest  or  equity. ^  And  the  rule  which  equity  applies 
in  these  cases  may  be  controlled  by  the  agreement  of  the 
parties.^ 

§  1137.  Rule  inapplicable  in  Special  Cases.  —  But  a  prior 
purchaser  of  part  of  the  mortgaged  premises  may  make  himself 
liable  to  contribute  to  a  subsequent  one  who  shall  have  paid 
an  outstanding  mortgage,  by  his  manner  of  dealing  with  the 
vendor  under  whom  they  both  claim.  Thus,  where  a  mort- 
gagor of  two  parcels,  to  secure  one  debt,  sold  one  to  A  B, 
taking  back  a  mortgage  to  secure  the  purchase-money,  and 

253  ;  Jumel  v.  Jumel,  7  Paige,  591  ;  Lafarge  Iiis.  Co.  v.  Bell,  22  Barb.  54;  Stoney 
V.  Shultz,  1  Hill,  Ch.  (S.  C.)  465,  500  ;  Conrad  v.  Harrison,  3  Leigh,  532  ;  Worth 
V.  Hill,  14  Wis.  559  ;  State  v.  Titus,  17  Wis.  241  ;  Beevor  v.  Luck,  L.  R.  4  Eq. 
537,  546  ;  Inglehart  v.  Crane,  42  111.  261  ;  George  v.  Wood,  9  Allen  80 ;  North- 
western  Land  Ass'n  v.  Robinson,  114  Ala.  468  ;  s.  c.  21  So.  Rep.  999  ;  Ellis  v. 
Fairbanks,  38  Fla.  257;  s.  c  21  So.  Rep.  107  ;  Union  Nat.  Bk.  of  Oshkosh  o. 
Milburn  &  Stoddard  Co.,  7  N.  Dak.  201;  s.  c.  73  N.  W\  Rep.  527  ;  Irvine  v.  Perry, 
119  Cal.  352 ;  s.  c.  51  Pac.  Rep.  544. 

1  Green  v.  Ramage,  18  Ohio,  428;  Dickey  v.  Thompson,  8  B.  Mon.  312.  See 
Morrison  v.  Beckwith,  4  T.  B.  Mon.  73  ;  Jobeu.  O'Brien,  2  Humph.  34  ;  Bates  v.  Rud- 
diek,  2  Iowa,  423,  a  full  and  well-considered  case  ;  Barney  v.  Myers,  28  Iowa,  472  ; 
Barnes  v.  Racster,  1  Younge  &  C.  Ch.  401  ;  Stanly  v.  Stocks,  1  Dev.  Eq.  314,  317. 
See  also  Adams,  Eq.  (Am.  ed.)  270,  note  of  American  cases. 

2  Norris  v.  Morrison,  45  N.  H.  490.  See  an  able  examination  of  the  question  of 
the  rights  of  several  purchasers  of  parts  of  a  mortgaged  estate  in  respect  to  each 
other,  with  a  reference  also  to  the  civil  law,  Dixon  on  Subrogation,  etc.,  p.  30  et 
seq.;  Locke  v.  Fulford,   52  111.  166. 

3  State  V.  Throup,  15  W^is.  314  ;  W'elsh  v.  Beers,  8  Allen,  151  ;  Bryant  v. 
Damon,  6  Gray,  564. 


OF  CONTRIBUTION  TO  REDEEM.  187 

then  sold  the  other  parcel  to  C  D,  and  became  insolvent, 
and  C  D  had  to  pay  the  entire  debt,  it  was  held  that  he 
thereby  became  entitled  to  have  the  mortgage  given  by  A  B 
to  his  grantor  assigned  to  him,  and  by  means  thereof  to  com- 
pel A  B  to  contribute  towards  the  redemption  of  the  origi- 
nal mortgage.^  And  where  one  of  two  grantees  of  separate 
mortgaged  parcels  gave  an  agreement  to  his  grantor  that  he 
would  pay  his  proportion  of  the  mortgage-debt,  and  the  other 
grantee  was  obliged  to  pay  the  entire  debt,  it  was  held  he 
might  call  upon  the  first  for  contribution. ^  In  another  case, 
it  was  held  that  where  the  mortgage  provides  that  any  part  of 
the  land  sold  by  the  mortgagor  shall  be  released  on  payment 
of  the  purchase-money  on  the  mortgage,  and  the  mortgagor 
sells  a  part  to  one  having  notice  of  such  provision,  reserving 
a  lien  for  deferred  payments,  and  delivering  the  notes  there- 
for to  the  mortgagee;  the  land  sold  was  primarily  liable  for 
the  amount  due  on  the  notes,  and  the  mortgagee  must  resort 
to  it  to  that  extent  before  subjecting  the  remaining  land  held 
by  the  mortgagor.^ 

§  1138,  Personal  Liability  of  Purchaser  or  Mortgagee  of  Land 
already  mortgaged.  —  Sometimes  the  deed  of  such  purchaser 
or  mortgagee  excepts  the  former  mortgage  from  its  covenants ; 
sometimes  the  deed  recites  that  the  debt  is  to  be  paid  as  a  part 
of  the  purchase-money,  or  assumes  in  some  form  that  the  pur- 
chaser or  mortgagee  of  the  estate  is  to  pay  the  first  mortgage- 
debt.  The  question  in  such  cases  is,  whether  the  purchaser 
takes  his  estate  charged  with  the  payment  of  the  debt,  which 
he  must  pay  to  save  his  estate,  or  whether  he  becomes  per- 
sonally responsible,  by  reason  of  having  received  from  the 
debtor  assets,  out  of  which  he  directly  or  by  implication  agrees 
to  pay  the  debt."*     But  an  heir,  devisee,  or  purchaser,  by  sim- 

1  Allen  V.  Clark,  17  Pick.  47. 

2  Sawyer  v.  Lyon,  10  Johns.  32  ;  Briscoe  v.  Power,  47  111.  447  ;  Bryant  r.  Damon, 
6  Gray,  564  ;  Mayo  v.  Merrick,  127  Mass.  .511. 

3  Northwestern  Land  Ass'n  v.  Roliinson,  114  Ala.  468  ;  s.  c.  21  So.  Rep.  999. 
*  Ferris  v.  Crawford,  2  Denio,  .59.5  ;  Thompson  v.  Thompson,  4  Ohio  St.  333, 

349  ;  Halsey  v.  Reed,  9  Paige,  446  ;  Belmont  v.  Coman,  22  N.  Y.  438  ;  Braman 
V.  Dowse,  12  Gush.  227  ;  Equit.  L.  Ass.  Soc.  v.  Bostwick,  100  N.  Y.  623  ;  Law- 
rence V.  Towle,  59  N.  H.  28  ;  anie,  §  1048  :  Burr  v.  Beers,  24  N.  Y.  178  ;  Schley 
V.  Fryer,  100  N.  Y.  71  ;  Davis  v.  Hnlett,  58  Vt.  90  ;  Thompson  v.  Thompson,  4  Ohio 
St.  353  ;  Thorp  v.  Keokuk  Coal  Co.,  48  X.  Y.  253-260. 


188  MORTGAGES. 

ply  taking  land  charged  with  a  mortgage-debt,  does  not  make 
the  debt  his  own,  or  subject  himself  or  his  personalty  in  equity 
to  its  payment.^  But  when  a  purchaser  assumes  the  debt  as  a 
part  of  the  price  he  is  to  pay  for  the  purchase,  he  makes  it  his 
own,  and  subjects  his  personalty  to  relieve  the  realty.  So, 
where  the  purchaser  assumes  to  pay  the  debt  as  a  part  of  the 
consideration  for  the  purchase,  he  makes  the  debt  his  own, 
both  as  it  regards  the  mortgagor  and  mortgagee,  and  an 
action  will  lie  in  favor  of  the  mortgagee  against  the  pur- 
chaser for  the  amount  of  the  incumbrance  retained  out  of  the 
price  he  agreed  to  pay.^  The  clew  which  is  to  guide  in  such 
cases  seems  to  be,  whether  by  the  deed  the  grantee  assumes 
to  pay  the  mortgage-debt,  or  is  to  pay  it,  or  words  to  that 
effect.  If  it  does,  though  it  be  a  deed-poll,  it  binds  the 
grantee  by  such  recital,  and  he  becomes  personally  liable 
therefor.  Otherwise  it  is  regarded  as  a  descriptive  clause, 
or  one  inserted  for  the  protection  of  the  grantor  from  liabil- 
ity upon  his  covenants  of  title.  ^ 

§  1139.  Purchaser's  Liability  at  Law  and  in  Equity.  —  That  a 
parol  contract  made  by  A  to  B  to  pay  C  money,  if  sustained 

1  Fiske  V.  TolmaTi,  124  Mass.  254  ;  Heim  v.  Vogel,  69  Mo.  529  ;  Babcock  v. 
Jordan,  24  Iiid.  14,  22;  Belmont  v.  Coraan,  22  N.  Y.  438  ;  Gage  v.  Brewster,  31 
N.  Y.  218,  221 ;  and  see  Brewer  v.  Maurer,  38  Ohio  St.  543. 

2  Lenuig's  Estate,  52  Penn.  St.  138,  139;  Hotf's  Appeal,  24  Penn.  St.  200. 

3  Braman  v.  Dowse,  12  Cush.  227  ;  Drury  v.  Tremont,  etc.  Co.,  13  Allen,  168  ; 
vide  post,  §  2408  ;  ante,  §  1048.  Where  there  is  an  express  recital  that  the  grantee 
is  to  pay  or  assume  the  mortgage-debt,  the  cases  are  uniform  that  he  is  personally 
liable  either  to  the  mortgagor,  as  held  in  Massachusetts  and  some  other  States, 
cases  supra;  Furnas  v.  Durgin,  119  Mass.  500  ;  Locke  v.  Homer,  131  Mass.  93  ; 
or  directly  to  the  mortgagee,  either  at  law  or  in  equity,  as  in  New  York  and  many 
other  States,  Burr  v.  Beers,  24  N.  Y.  178 ;  Campbell  v.  Shruni,  3  Watts,  60  ; 
Merriinan  v.  Moore,  90  Penn.  St.  78  ;  Eoss  v.  Kennison,  38  Iowa,  396.  But  where 
the  agreement  is  that  the  purchaser  takes  the  estate  "under  and  subject"  to  the 
mortgage,  or  it  is  to  form  part  of  the  consideration,  it  is  held  in  Massachusetts 
that  he  is  under  no  personal  liability  for  the  debt.  Fiske  v.  Tolman,  124  Mass. 
254  ;  Locke  i'.  Homer,  131  Mass.  93,  106;  and  see  Belmont  v.  Coman,  22  N.  Y. 
438,  and  Heim  v.  Vogel,  69  Mo.  529.  But  the  prevailing  rule  is,  that  such  a  re- 
cital makes,  in  equity  at  least,  an  agreement  to  indemnify  the  mortgagor  if  he 
is  held  to  pay.  Tweddell  v.  Tweddell,  2  Bro.  C.  C.  152  ;  Waring  v.  Ward,  7  Ves. 
337;  Tichenor  v.  Dodd,  4  N.  J.  Eq.  454  ;  Burke  v.  Gummey,  49  Penn.  St.  518; 
Academy  v.  Smith,  54  Penn.  St.  130  ;  Metzgar's  App.,  71  Penn.  St.  330  ;  Girard 
Ins.  Co.  V.  Stuart,  86  Penn.  St.  89;  Moore's  App.,  88  Penn.  St.  450;  Merriman  v. 
Moore,  90  Penn.  St.  78,  80  ;  Snyder  v.  Summers,  1  Lea,  534,  540  ;  Townsend  v. 
Ward,  27  Conn.  610. 


OF  CONTRIBUTION  TO  REDEEM.  189 

by  a  sufficient  consideration,  may  be  enforced  by  suit  at  law 
in  C's  name,  seems  to  be  generally  conceded  in  many  of  the 
States;^  [but  this  doctrine  is  contrary  to  the  principle  of  the 
law  of  contracts  that  only  the  one  from  whom  the  considera- 
tion moves  has  a  right  of  action  on  the  promise,  and  is  denied 
by  the  English  courts  and  by  high  authority  in  this  country.^ 
But  whatever  the  liability  to  the  mortgagee,  at  law,  of  one 
who  buys  mortgaged  property,  assuming  to  pay  the  mortgage 
debt,  his  personal  liability  in  equity  to  the  mortgagee  is  well 
recognized;  so  that  upon  foreclosure,  a  deficiency  decree  can 
be  rendered  against  him.  This  liability  is  based  upon  the 
equitable  doctrine  of  subrogation.^]  And  in  New  York,  while 
the  courts  hold  that  if  a  second  mortgagee  covenant  with  the 
mortgagor  that  he  will  assume  and  pay  the  prior  mortgage, 
[the  mortgagee  is  not  subrogated  so  that  upon  foreclosure  he 
can  enforce  the  second  mortgagee's  promise  by  deficiency  de- 
cree,^] it  would  be  otherwise  if  the  conveyance  was  an  abso- 

1  Shotwell  V.  Gilkey,  31  Ala.  724  ;  Hecht  v.  Caughron,  46  Ark.  132 ;  Green  v. 
Morrison,  5  Col.  18  ;  Steele  v.  Clark,  77  111.  471  ;  Rogers  v.  Grosnell,  58  Mo.  589  ; 
Shamp  V.  Mej'cr,  20  Neb.  223;  Merriman  i>.  Moore,  90  Penn.  St.  78;  Putney  v. 
Fariiham,  27  Wis.  187  ;  Wood  v.  Moriarty,  15  R.  I.  518  ;  s.  c.  9  Atl.  Rep.  427. 

2  The  doctrine  of  these  courts  is  that  the  third  person,  to  have  a  right  of  action 
on  the  promise,  must  be  privy  to  the  consideration.  To  this  there  are  two  well- 
recognized  apparent,  but  not  real,  exceptions :  1st,  where  the  promisor  has  in  his 
possession  a  fund  which,  ex  bono  et  aequo,  he  ought  to  pay  to  the  third  person ;  2d, 
where  the  promise  is  made  entirely  for  the  benefit  of  the  third  person.  In  both  of 
these  cases,  the  promisee  is  treated  as  the  agent  of  the  third  person,  he  being  the 
real  promisee,  the  one  to  whom  the  promise  is  made  having  no  light  of  action  be- 
cause he  only  acts  as  agent.  Second  Nat.  Bank  v.  Grand  Lodge,  98  U.  S.  123  ; 
Crazin  v.  Lovell,  109  U.  S.  194;  Locke  v.  Plomer,  131  Mass.  93  ;  Pardee  v.  Treat, 
82  N.  Y.  385  ;  Chung  Kee  v.  Davidson,  73  Cal.  522  ;  Martyn  v.  Arnold,  36  Fla. 
446.  The  case  of  Hendricks  v.  Lindsay  has  been  erroneously  cited  as  supporting 
the  contrary  view ;  and  many  of  the  cases  contra  seem  to  be  on  the  authority  of 
early  overruled  cases  in  California,  Massachusetts,  and  New  York,  and  on  cases  in 
equity  in  which  the  equitable  doctrine  of  subrogation  has  been  applied.  In  Con- 
necticut, by  statute,  if  a  conveyance  provide  that  the  grantee  shall  assume  and  pay 
an  existing  mortgage  he  is  legally  liable  to  the  mortgagee.  Gen.  Stat.  1888,  §  983. 
But  upon  tlie  main  proposition,  the  Connecticut  courts  are  in  line  with  the  cases 
above  cited.     Baxter  v.  Camp,  71  Conn.  245  ;  s.  c.  41  Atl.  Rep.  803. 

3  Jones  on  Mortgages,  §  755  ;  Thompson  v.  Dearborn,  107  111.  87. 

*  Garnsey  v.  Rogers,  47  N.  Y.  233  ;  Pardee  v.  Treat,  82  N.  Y.  385  ;  Condict  v. 
Flower,  106  111.  105.  If  the  assumption,  though  absolute,  was  by  a  remote  assignee, 
and  the  mesne  assignees  had  not  assumed,  Vrooman  r.  Turner,  69  N.  Y.  280;  or  if 
no  valid  debt  exists  against  the  mortgagor.  Trotter  v.  Hughes,  12  N.  Y.  74  ;  or  no 
separate  note  or  bond  for  the  debt,  or  covenant  in  terms  in  the  mortgage  to  pay  it. 


190  MORTGAGES. 

lute  one,  and  the  assumption  of  the  mortgage-debt  was  a  part 
of  the  consideration  for  the  conveyance.  It  is  considered  as 
so  much  money  left  in  the  hands  of  the  purchaser  for  the  use 
of  the  mortgagee.^  And  the  mortgagee  may  recover  of  the 
purchaser,  if  he  expressly  agrees  with  the  vendor  to  pay  the 
mortgage-debt.  2 

§  1140.  Mortgagor's  Remedy  against  Assuming  Purchaser.  — 
Where,  therefore,  a  purchaser  from  a  mortgagor  of  the  mort- 
gaged estate,  agrees  with  his  grantor  to  assume  and  pay  the 
mortgage-debt,  the  mortgagor's  remedy  against  the  purchaser 
is  either  directly  by  an  action  upon  his  agreement,^  or  by  way 
of  subrogation  to  the  mortgagee,  if  he  has  enforced  the  debt 
against  the  mortgagor.*  For,  as  between  the  vendor  and  pur- 
chaser, in  such  a  case  the  purchaser  becomes  the  principal 
and  the  vendor  the  surety  in  respect  to  the  debt.^ 

Spencer  v.  Spencer,  95  N.  Y.  353  ;  Mack  v.  Austin,  id.  513;  or  if  the  consideration 
fails  by  the  vendee's  eviction,  Dunning  v.  Leavitt,  85  N.  Y.  30 ;  unless  the  deed 
was  a  quitclaim  only,  with  merely  a  failure  of  title,  Thorp  v.  Keokuk  Co.,  48  N.  Y. 
253.  But  until  eviction  the  validity  of  the  mortgage  cannot  be  disputed.  Park- 
inson V.  Sherman,  74  N.  Y.  88.  And  it  is  no  defence  that  the  mortgagor  was  a 
married  woman,  as  she  is  not  a  surety.  Cashman  i'.  Henry,  75  N.  Y.  103  ;  Huyler 
V.  Atwood,  26  N.  J.  Eq.  504. 

1  Burr  V.  Beers,  supra;  Ricard  v.  Saunderson,  41  N.  Y.  179. 

2  Thorp  V.  Keokuk  Coal  Co.,  48  N.  Y.  256,  257  ;  Campbell  v.  Smith,  71  N.  Y. 
26;  Crawford  v.  Edwards,  33  Mich.  354  ;  Corbett  v.  Waterman,  11  Iowa,  86;  Bowen 
V.  Kurtz,  37  Iowa,  239  ;  Ross  v.  Kinnison,  38  Iowa,  396 ;  Schmucker  v.  Sibert,  18 
Kan.  104  (the  liability  in  the  two  latter  States  being  at  law  and  on  the  note); 
George  v.  Andrews,  60  Md.  26.  The  mortgagor  becomes  a  mere  surety,  and  is  dis- 
charged by  extension  of  time,  etc.  Calvo  v.  Davies,  73  N.  Y.  211 ;  Paine  v.  Jones, 
76  N.  Y.  278  ;  Spencer  v.  Spencer,  95  N.  Y.  353 ;  George  v.  Andrews,  supra ; 
Flower  v.  Lance,  59  N.  Y.  603.  In  other  States,  however,  he  and  the  vendee  are 
alike  principal  debtors.  Corbett  v.  Waterman,  Crawford  v.  Edwards,  supra ;  Klap- 
worth  V.  Dressier,  13  N.  J.  Eq.  62 ;  Huyler  v.  Atwood,  26  N.  J.  Eq.  504 ;  Crowell 
V.  Currier,  27  N.  J.  Eq.  152.  But  this  equity  is  not  that  of  the  mortgagee  to  be 
subrogated,  but  that  of  the  mortgagor  to  be  relieved.  Crowell  v.  St.  Barnabas 
Hosp.,  27  N.  J.  Eq.  650,  655  ;  and  see  Heid  v.  Vreeland,  30  N.  J.  Eq.  591.  This 
equity  is  not  recognized  in  foreclosure  in  Missouri,  on  account  of  the  statutory 
nature  of  the  proceeding.     Fithian  v.  Monks,  43  Mo.  502. 

8  Furnas  v.  Durgin,  119  Mass.  500  ;  Locke  v.  Homer,  131  Mass.  93  ;  Reed  v. 
Paul,  id.  129 ;  Rubens  v.  Prindle,  44  Barb.  336 ;  Thayer  v.  Torrey,  37  N.  J.  339  ; 
Snyder  v.  Summers,  1  Lea,  534,  540. 

*  Marsh  v.  Pike,  10  Paige,  595  ;  Morris  v.  Oakford,  9  Penn.  St.  498  ;  Trotter  v. 
Hughes,  12  N.  Y.  74. 

5  Ferris  v.  Crawford,  2  Danio,  595  ;  Blyer  v.  Monholland,  2  Sandf,  Ch.  478  ; 
Tripp  V.  Vincent,  3  Barb.  Ch.  613 ;   Flagg  v.  Thurber,  14  Barb.  196  ;   Morris  v. 


OF  CONTRIBUTION  TO  REDEEM.  191 

§  1141.  Subrogation  to  enforce  Contribution.  —  It  is  by  the 
application  of  the  principle  of  subrogation  that  the  rights  of 
a  widow  to  dower  in  an  equity  of  redemption  are  ascertained 
and  enforced.  She  cannot  insist  that  the  holder  of  the  mort- 
gage shall  relinquish  his  claim  upon  the  estate  in  her  favor, 
without  being  paid  the  amount  of  his  mortgage  in  full ;  and  if 
other  parties  interested  in  the  equity  of  redemption  neglect  or 
refuse  to  redeem  the  mortgage,  her  only  remedy  is  to  redeem 
the  entire  estate,  and  hold  the  same  as  equitable  assignee  till 
the  other  parties  are  willing  to  contribute  their  proportion 
of  the  mortgage-debt.^  Whereas,  if  any  other  party  having  the 
equity  of  redemption  pay  the  mortgage,  she  would  be  obliged 
to  contribute  her  proportion  of  the  redemption-money  before 
recovering  her  dower,^  or,  in  Massachusetts,  she  might  have  her 
dower  according  to  the  value  of  the  estate,  after  deducting  the 
amount  paid  for  the  redemption.^  The  general  doctrine  may 
be  stated  thus:  If  one  who  has  a  right  to  redeem  a  mortgage, 
and  to  require  an  assignment  of  it  to  him  for  his  protection, 
pays  it,  and  a  full  satisfaction  is  indorsed  upon  the  mortgage, 
it  may  still,  as  between  the  parties  interested  in  the  estate, 
be  held  to  be  a  subsisting  security.  The  payment  will  be 
treated  as  a  purchase  in  favor  of  the  party  making  it.*  Where 
one  took  a  mortgage  upon  a  part  of  an  estate  which  had  pre- 
viously been  mortgaged,  and  wished  to  save  his  estate  from 
foreclosure  under  this  prior  mortgage,  he  had  to  pay  the  entire 
debt,  and,  by  so  doing,  became  subrogated  to  the  place  of  the 
prior  mortgagee  for  so  much  of  the  debt  as  the  whole  of  the 

Oakford,  9  Penn.  St.  498  ;  Russell  v.  Pistor,   7  N.  Y.  171 ;  Lilly  v.  Palmer,  51 
111.   331. 

1  McOabe  v.  Bellows,  7  Gray,  148  ;  Gibson  v.  Crehore,  5  Pick.  146 ;  Brown  v. 
Lapham,  3  Gush.  .551  ;  Eaton  v.  Simonds,  14  Pick.  98  ;  Bell  v.  The  Mayor,  10 
Paige,  49.  And  this  is  true  of  all  tenants  for  life.  Lamson  v.  Drake,  105  Mass. 
564,  567;  Spencer?;.  Waterman,  36  Conn.  342.  In  Indiana,  however,  where  the 
wife's  interest  is  in  fee,  she  is  entitled  to  have  her  husband's  interest  sold  first. 
Hardy  v.  Miller,  89  Ind.  440. 

2  Messiter  v.  Wright,  16  Pick.  151  ;  Gibson  v.  Crehore,  5  Pick.  146  ;  Clough  v. 
Elliott,  23  N.  H.  182 ;  Adams  v.  Hill,  29  N.  H.  202. 

8  McCabe  v.  Bellows,  7  Gra)',  148  ;  Pub.  Stat.  1881,  c.  124,  §  5.  See  Van 
Vronker  v.  Eastman,  7  Met.  157  ;  Henry's  Case,  4  Cush.  257. 

*  Drew  V.  Kust,  36  N.  H.  335  ;  Robinson  v.  Leavitt,  7  N.  H.  73,  99  ;  Rigney  v. 
Lovejoy,  13  N.  H.  247  ;  Aiken  v.  Gale,  37  N.  H.  501  ;  Cheesebrough  v.  Millard, 
1  Johns.  Oh.  413  ;  Bacon  v.  Goodnow,  59  N.  H.  415. 


192  MORTGAGES, 

estate  exceeded  the  debt  for  which  he  held  his  mortgage.  ^  So 
where  one  owned  two  undivided  eighth  parts  of  an  estate,  sub- 
ject to  a  mortgage,  and  his  co-tenant  of  the  six  eighth  parts 
held  this  mortgage,  he  was  obliged,  in  order  to  redeem  his 
two  eighths,  to  pay  the  entire  mortgaged  debt;  but,  by  so 
doing,  he  became  subrogated  to  six  eighth  parts  of  it,  which 
his  co-tenant  would  have  to  repay  him  in  order  to  redeem  his 
share  of  the  estate.  ^ 

S  1142.  Contribution,  how  computed  w^here  Equities  are 
Equal.  —  A  dowress  can  have  but  a  life-estate  in  a  portion  of 
the  premises,  another  may  have  a  lease  of  the  premises  for 
years,  while  a  third  may  have  a  reversion  in  fee  or  for  life; 
and  it  may  become  necessary  to  determine  what  each  of  these 
parties  shall  contribute  to  save  their  interest  from  foreclos- 
ure. Where  the  equities  are  equal  and  not  successive,  it  is 
a  matter  which  does  not  affect  or  concern  the  mortgagee,  as 
he  may  look  to  the  estate  irrespective  of  the  owners.  The 
rule  as  now  settled  seems  to  be  as  follows:  A  tenant  for  life 
is  bound  to  keep  down  the  current  interest  (and  if  tenant  for 
years  is  liable  at  all,  the  same  rule  would  seem  to  apply),  but 
not  to  pay  any  part  of  the  principal.^  Now  if,  for  example, 
there  is  a  tenant  for  life,  and  a  remainder-man  in  fee  of  an 
estate,  subject  to  a  mortgage  which  is  due  and  must  be  paid 
at  once  to  save  foreclosure,  and  the  remainder-man,  to  save 
the  estate,  pays  the  mortgage,  he  is  not  obliged  to  take  the 
share  of  the  tenant  for  life  in  annual  instalments  of  interest 
to  continue  as  long  as  he  shall  live.  He  is  entitled,  as  equi- 
table assignee  of  the  mortgagee,  to  immediate  payment;  and 
the  sum  which  he  thus  has  a  right  to  claim  is  whatever  the 
present  worth  of  an  annuity  equal  to  the  amount  of  the  annual 
interest  would  be,  computed  for  the  number  of  years  which 
the  tenant  will  live.  The  method  of  computing  the  amounts 
to  be  paid  by  a  dowress  or  other  life  tenant  and  the  remain- 
der-man respectively  has  been  stated  ante,  §§  241,  480. 

§   1143.     Surety's     Equity    to    be     subrogated.  —  Under     the 

1  Knowles  v.  KaUin,  20  Iowa,  101,  104. 

2  Merritt  v.  Hosmer,  11  Gray,  276. 

^  Tud.  Cas.  59  ;  Squire  v.  Compton,  2  Eq.  Cas.  Abr.  387  ;  Swaine  v.  Ferine, 
a  Johns.  Ch.  482  ;  Story,  Eq.  Jur.  §  487  ;  Powell,  Mortg.  924,  n.  ;  Bell  i;.  The 
Maj'or,  supra. 


OP   CONTRIBUTION   TO    REDEEM.  193 

broad  power  which  equity  exercises  in  treating  parties  who 
are  interested  to  avail  themselves  of  the  benefit  of  a  mort- 
gage, as  equitable  assignees  thereof,  when  by  so  doing  it  is 
made  to  fulfil  the  original  purpose  of  being  a  security  for  the 
debt,  a  surety  may  be  substituted  in  the  place  of  the  creditor 
to  whom  the  principal  debtor  has  made  a  mortgage  as  secur- 
ity for  the  payment  of  the  debt,  if  such  surety  is  compelled  to 
pay  it.i  And  he  would  have  a  right  to  insist  upon  the  debt 
being  paid  out  of  the  mortgaged  estate,  in  preference  to  sub- 
sequent incumbrances  created  by  the  mortgagor.  ^  And  if  a 
wife,  as  surety  for  a  husband,  pay  the  debt,  she  will  be  sub- 
rogated to  the  place  of  her  husband's  mortgagee.^  So  if  a 
surety  pay  his  principal's  del)t  to  a  creditor  who  holds  a 
mortgage  to  secure  the  same,  he  will  be  subrogated  to  the 
place  of  the  creditor,  not  only  as  against  his  principal,  but 
his  wife  also,  if  she  joined  in  the  mortgage.* 

§  1144.  Difference  between  Subrogation  and  Assignment.  — 
There  is  this  distinction  between  subrogation  to  the  place  and 
rights  of  a  mortgagee,  and  an  assignment  of  these  rights. 
The  one  assumes  the  mortgage-debt  to  be  paid;  the  other 
assumes  that  the  debt  is  unpaid,  and  still  in  force. ^  Thus 
where  a  junior  mortgagee  pays  off  a  prior  incumbrance  in 
order  to  protect  his  interest,  he  comes  into  the  place  of  the 
prior  mortgagee  by  subrogation  by  the  act  of  the  law,  without 
any  act  done  by  such  mortgagee.  If  one  be  surety  for  a  debt 
which  is  secured  by  a  mortgage  made  by  his  principal  to  the 
creditor,  and  he  have  to  pay  the  debt,  he  may  by  the  law  of 
New  York  insist  upon  the  mortgagee  assigning  to  him  the 
mortgage,  as  well  as  the  debt  thereby  secured.  But  unless 
he  pays  the  debt  as  surety,  or  as  standing  in  the  place  of  a 

1  Cheesebrough  v.  Millard,  1  Johns.  Ch.  409  ;  Hayes  v.  Ward,  4  Johns.  Ch. 
123  ;  Mathews  v.  Aikin,  1  N.  Y.  595  ;  Boot  v.  Bancroft,  10  Met.  44 ;  Ottman  v. 
Moak,  3  Sandf.  Ch.  431 ;  Burton  v.  Wheeler,  7  Ired.  Eq.  217  ;  Bk.  of  So.  Car.  i;. 
Campbell,  2  Ricli.  Eq.  179  ;  Pence  v.  Armstrong,  95  Ind.  191,  196.  Even  though 
the  debt  be  barred  by  statute.  Ohio  L.  I.  Co.  v.  Winn,  4  Md.  Ch.  Dec.  253  ; 
Stiewell  v.  Burdell,  18  La.  Ann.  17  ;  Billings  v.  Sprague,  49  111.  509. 

2  Wilcox  V.  Todd,  64  Mo.  388  ;  Shinn  v.  Smith,  79  N,  C.  310. 

3  Neimcewicz  v.  Gahn,  3  Paige,  640  ;  Albion  Bk.  v.  Burns,  46  N.  Y.  170,  178. 

*  Dearborn  v.  Taylor,  18  X.  H.  153  ;  McHenry  v.  Cooper,   27  Iowa,  137,  146  ; 
Phares  v.  Barbour,  49  111.  370;  Rogers  v.  Trustees,  etc.,  40  111.  428. 
»  Lamb  v.  Montaguf,  112  Mass.  352,  353. 
VOL.  II.  —  13 


194  MORTGAGES. 

surety,  he  cannot  insist  upon  an  assignment  being  made  to 
him  of  the  debt  and  mortgage. ^  And  because  of  this  right  in 
a  surety  upon  payment  of  the  debt  to  be  subrogated  to  the 
place  of  the  mortgagee,  if  the  mortgagee  discharge  the  mort- 
gage without  his  consent,  the  surety  is  thereby  himself  dis- 
charged from  liability  for  the  debt.^  And  where  a  princi])al, 
to  secure  his  surety,  made  an  absolute  deed  of  land,  and  the 
grantee  died  before  paying  the  debt,  it  was  held  that  the  cred- 
itor had  thereby  an  equitable  lien  on  the  estate  for  the  amount 
of  his  debt.^  So  a  creditor  may  avail  himself,  as  a  security 
for  his  debt,  of  the  benefit  of  a  mortgage  which  his  debtor  has 
made  to  a  surety  for  such  debt  by  the  way  of  indemnity."* 
Thus,  where  A  gave  to  B,  who  was  an  accommodation  in- 
dorser,  a  mortgage  of  indemnity,  and  both  maker  and  indorser 
became  insolvent,  it  was  held  that  the  holders  of  the  notes 
might  avail  themselves  of  the  mortgage  security.^  But  where 
a  debtor  mortgaged  to  his  creditor  land  which  was  subject  to 
a  homestead  right,  and  could  not  be  reached  by  general  cred- 
itors, and  became  bankrupt,  and  his  creditor  released  his 
mortgage  and  came  in  for  a  dividend  out  of  the  debtor's  other 
estate,  and  the  other  creditors  objected  that  he  had  released 
what  ought  to  have  gone  to  relieve  the  estate  out  of  which 
they  were  to  be  paid,  it  was  held  that  his  lien  was  a  personal 
one  only,  since  the  mortgaged  estate  was  not  liable  for  the 
debts  of  the  debtor,  and  therefore  there  was  no  wrong  done 
to  them  by  such  release.^     If  two  co-debtors  mortgage  land 

1  Ellsworth  V.  Lockwood,  42  N.  Y.  89,  96,  100. 

2  Port  V.  Bobbins,  35  Iowa,  208,  213. 
8  Roberts  v.  Eichards,  36  111.  339. 

4  Curtis  V.  Tyler,  9  Paige,  432 ;  Blyer  v.  Monholland,  2  Sandf.  Ch.  478  ;  Ten 
Eyck  V.  Holmes,  3  Sandf.  Ch.  428  ;  Arnold  o.  Foot,  7  B.  Mon.  66  ;  Moore  v.  Mo- 
berly,  id.  299  ;  Stewart  v.  Preston,  1  Fla.  10  ;  Besley  v.  Lawrence,  11  Paige,  581  : 
Story,  Eq.  §  638 ;  Eastman  i'.  Foster,  8  Met.  19  ;  N.  Bedf.  Inst.  Sav.  v.  Fairhaven 
Bk.,  9  Allen,  175;  N.  Lond.  Bk.  v.  Lee,  11  Conn.  112;  Moses  v.  Mnrgatroyd, 
1  Johns.  Ch.  119;  Phillips  y.  Thompson,  2  Johns.  Ch.  418;  Aldrich  v.  Martin, 
4  R.  I.  520,  case  of  an  indorser;  Manre  v.  Harrison,  1  Eq.  Cas.  Abr.  93  ;  Ro.ss  v. 
Wilson,  7  Sm.  &  M.  753 ;  Saylors  v.  Saylors,  3  Heisk.  525  ;  Paris  v.  Hulett,  26  Vt. 
308  ;  Boyd  v.  Parker,  43  Md.  182  ;  Klapworth  v.  Dressier,  13  N.  J.  Eq.  62 ;  Crowell 
V.  St.  Barnabas  Hosp.,  27  N.  J.  Eq.  650,  655 ;  Lcehr  v.  Colbom,  92  Ind.  24  ;  Kelly 
V.  Herrick,  131  Mass.  373  ;  Harmony  Bk.  App.,  101  Penn.  St.  428. 

5  Rice  V.  Dewey,  13  Gray,  47.  See  Hall  v.  Cushman,  16  N.  H.  462,  as  to  one 
surety  availing  himself  of  a  mortgage  made  by  the  principal  to  his  co-surety. 

®  Dickson  v.  Chorn,  6  Iowa,  19. 


OF   CONTRIBUTION   TO    REDEEM.  195 

belonging  to  them  jointly  to  secure  a  joint  debt,  and  one  of 
them  is  obliged  to  pay  the  whole  debt,  he  becomes  in  techni- 
cal language  subrogated  to  the  place  of  the  mortgagee,  as  to 
the  mortgage  upon  his  co-debtor's  half  of  the  estate,  as  secur- 
ity for  his  contributing  his  share  of  the  debt,^  unless,  as  be- 
tween the  debtors,  one.  is  a  principal  and  the  other  a  surety 
in  the  mortgage-debt.  If,  in  such  a  case,  the  real  principal  of 
the  debt  pay  it,  the  doctrine  of  subrogation  as  to  the  land 
of  the  other  mortgagor  does  not  apply. ^  Thus,  where  one 
made  two  successive  mortgages  of  the  same  estate  to  two 
different  mortgagees,  and  the  second  of  these  was  foreclosed, 
and  the  interest  in  both  then  came  into  the  same  owner's 
hands,  it  was  held  that  the  mortgagor  could  not  after  this 
redeem  the  first  mortgage  so  as  to  acquire  a  right  to  open  the 
foreclosure  of  the  second,  and  then  redeem  from  it.  If  he 
paid  the  first  mortgage,  he  extinguished  it,  and  could  not 
thereby  claim  to  be  subrogated  to  the  place  of  the  mortgagee. ^ 
And  this  right  of  subrogation,  in  the  cases  above  supposed, 
though  originally  a  doctrine  of  equity,  has  become  recognized 
as  a  legal  right.* 

§  1145.  Subrogation  in  Favor  of  Mortgagor.  —  A  mortgagor 
will,  however,  be  subrogated  to  the  place  and  the  rights  of  the 
mortgagee  in  respect  to  the  mortgage-debt,  when  it  is  necessary 
in  order  to  accomplish  the  purposes  of  justice,  even  against 
the  person  claiming  under  the  mortgagor  himself.  Thus,  if  a 
mortgagor  sells  the  mortgaged  estate  subject  to  the  payment 
of  the  mortgage,  and  the  holder  of  the  debt  thereby  secured 
calls  upon  the  mortgagor  to  pay  the  same,  and  he  thereupon 
pays  it,  he  will,  by  so  doing,  become  at  once  subrogated  to  the 
place  of  the  mortgagee,  with  a  right  to  reimburse  himself  out 
of  the  mortgaged  premises.  And  this  would  be  equally  so 
though  the  premises  were  held  by  a  purchaser  from  the  vendee 
of  the  mortgagor.     In  equity,  the  mortgaged  estate  in  such 

1  Sargent  t'.  M'Farland,  8  Pick.  500. 

2  Crafts  V.  Crafts,  13  Graj',  360,  362  ;  Cherry  v.  Monro,  2  Barb.  Ch.  618  ; 
Kilborn  v.  Robbins,  8  Allen,  466,  471. 

«  Butler  1-.  Seward,  10  Allen,  466. 

*  La  Farge  v.  Herter,  11  Barb.  159.  See  Dixon  on  Subrogation,  13  et  seq.,  and 
citations  from  the  Civil  Law  ;  Aiken  i'.  Gale,  37  N.  H.  501 ;  Cornell  v.  Prescott, 
2  Barb.  16  ;  Fletcher  v.  Chase,  16  N.  H.  38,  42. 


196  MORTGAGES. 

case  becomes  the  primary  fund  out  of  which  the  debt  is  to  be 
paid.^  This  principle  is  carried  out  in  respect  to  the  assignees 
of  the  respective  parties.  As  where  A,  having  mortgaged  an 
estate  to  B,  sold  it  to  C,  who  agreed,  as  recited  in  his  deed,  to 
pay  B's  mortgage.  C  also  gave  back  a  mortgage  to  A,  con- 
taining an  exception  from  the  covenants  of  this  mortgage  to 
B,  to  secure  the.  purchase-money.  This  mortgage  contained 
covenants  for  title.  A  then  assigned  this  latter  deed  to  N, 
subject  to  the  condition  therein,  and  indorsed  the  mortgage- 
note  without  recourse.  N  having  died,  B  assigned  his  mort- 
gage to  the  executors  of  N,  who  sued  A  on  his  note  secured 
thereby.  It  was  held  that  if  A  paid  this  debt  he  would  be 
subrogated  to  the  place  of  B  as  against  C,  and  also  as  against 
the  holder  of  the  second  mortgage,  because  the  holder  took  it 
subject  to  the  condition  to  pay  B's  mortgage  which  was  con- 
tained in  C's  deed.  The  executors,  therefore,  as  holders  of 
B's  mortgage,  could  not  recover  in  an  action  against  A,  be- 
cause, as  his  assignees,  they  were  ultimately  bound  to  pay  the 
debt  which  they  were  suing.^ 

§  1146.  Effect  upon  Surety  of  impairing  his  Equity  to  Sub- 
rogation.—  This  doctrine  of  equity  rests  upon  the  principle  that 
the  mortgage  being  upon  the  debtor's  property,  and  intended 
as  security  for  the  payment  of  the  debt,  shall  be  so  held  by 
any  one  having  a  right  to  recover  the  debt  from  the  principal 
debtor.  It  has  been  accordingly  held,  that  a  surety  may  have 
the  benefit  of  the  mortgage  made  to  the  creditor  by  the  prin- 

1  Jurael  V.  Jumel,  7  Paige,  591 ;  Cox  v.  Wheeler,  7  Paige,  248,  257  ;  Baldwin 
V.  Thompson,  6  La.  474,  where  the  doctrine  is  extended  to  all  cases  where  one 
pays  the  debt  of  another  which  he  is  legally  bound  or  has  an  interest  to  pay  ;  he 
is  subrogated  to  the  rights  of  the  creditor  against  the  person  for  whom  he  has 
paid.  So  where  a  mortgagee  is  liable  to  the  assignee  of  the  mortgage  on  his 
indorsement  of  the  mortgage  note.  "Williams  v.  Roger  "Wms.  Ins.  Co.,  107  Mass. 
377,  379;  and  see  Dixon  on  Subrogation,  86-93  ;  Fletcher  v.  Chase,  16  N.  H.  42  ; 
Robinson  v.  Leavitt,  7  N.  H.  73,  100  ;  Baker  v.  Terrell,  8  Minn.  195  ;  Kinnear  v. 
Lowell,  34  Me.  299 ;  Halsey  v.  Reed,  9  Paige,  446  ;  Funk  v.  McReynold,  33  111. 
481,  495  ;  Heath  v.  West,  26  N.  H.  191  ;  Bell  v.  Woodward,  34  N.  H.  90  ;  Still- 
man  V.  Stillman,  21  N.  J.  Eq.  126  ;  Passumpsic  Bk.  v.  Weeks,  59  N.  H.  239  ; 
ante,  §  1137  and  notes.  See  also  Thompson  v.  Cheeseman,  15  Utah,  43;  s.  c.  48 
Pac.  Rep.  477  ;  Schroeder  v.  Kinney,  15  Utah,  462 ;  s.  c.  49  Pac.  Rep.  894  ;  Nelson 
r.  Brown,  140  Mo.  580  ;  s.  c.  41  S.  W.  Rep.  890 ;  s.  C.  62  Am.  St.  Rep.  755  ; 
Insurance  Co.  v.   Hanford,  143  U.  S.  187. 

2  Swett  V.  Sherman,  109  Mass.  231. 


OP  CONTRIBUTION  TO  REDEEM.  197 

cipal  debtor,  even  though,  before  he  has  been  called  on  to  pay 
the  debt,  the  mortgagor  has  sold  and  conveyed  the  estate  to 
another.^  And  where  the  creditor  voluntarily  does  an  act 
invalidating  or  discharging  the  security  that  he  holds  from 
the  principal  for  a  debt  to  which  there  is  a  surety,  he  will 
thereby  lose  his  claim  on  the  surety  to  the  same  extent  as 
the  latter  is  injured  by  such  act  of  the  creditor.^  So  if  the 
creditor  gives  time  to  the  principal  to  the  injury  of  the  surety, 
it  not  only  discharges  the  surety,  but  avoids  any  mortgage 
which  the  debtor  may  have  made  to  the  surety  to  indemnify 
him  ;  and  this  would  extend  to  the  case  of  a  wife  who  is  such 
surety.^  So,  if  the  purchaser  of  an  equity  of  redemption  who 
has  assumed  payment  of  the  mortgage  be  given  additional  time 
by  the  mortgagee  without  the  consent  of  the  mortgagor,  the 
latter  is  discharged  upon  his  personal  obligation.*  Thus  where 
husband  and  wife  made  a  bond  and  mortgage  of  her  estate, 
payable  at  a  certain  time,  intended  as  collateral  security  for 
certain  notes  due  from  him,  and  the  mortgagee  renewed  these 
notes  after  the  time  when  the  bond  had  become  due  by  its 
terms,  it  was  held  to  discharge  the  mortgage  as  to  the  wife  and 
her  heirs.^  But  to  have  that  efTect,  the  creditor  must  have 
known  that  the  one  to  whom  he  gave  time  was  a  principal  for 
whom  the  other  was  a  surety.^  And  the  same  rule  applies 
where  there  are  two  sureties,  and  one  of  them  holds  a  mort- 
gage to  secure  his  indemnity,  and  his  co-surety  has  to  pay 
the  debt ;  the  latter  is  subrogated  in  the  place  of  the  former 
as  to  the  security."  But  a  surety  is  not  entitled  to  be  thus  sub- 
stituted until  the  whole  debt  shall  have  been  paid.^     And  he 

1  Gossin  V.  Brown,  11  Penn.  St.  527. 

2  Hayes  v.  Ward,  4  Johns.  Ch.  123  ;  Cheesebrough  v.  Millard,  1  Johns.  Ch. 
409. 

3  Neimcewicz  v.  Gahn,  3  Paige,  642  ;  Harberton  v.  Bennett,  Beatty,  Ch.  386. 

*  Thompson  v.  Cheeseman,  supra;  Schroeder  v.  Kinney,  supra;  Nelson  v. 
Brown,  supra;   Insurance  Co.  v.  Hanford,  supra. 

5  Albion  Bk.  v.  Burns,  46  N.  Y.  170,  178  ;  Frickee  v.  Donner,  35  Mich.  151. 

®  Ibid.  But  it  is  held  otherwise  where  the  debt  was  pre-existing.  Knight  v. 
Whitehead,  26  Miss.  245. 

'  Cheesebrough  v.  Millard,  1  Johns.  Ch.  409. 

^  Stamford  Bk.  v.  Benedict,  15  Conn.  437.  And  the  same  rule  has  been  applied 
to  securities  given  to  the  surety.  Kelly  v.  Herrick,  131  Mass.  373  ;  Clark  v.  Ely, 
2  Sandf.  Ch.  166.  But  see  Moore  v.  Moberly,  7  B.  Mon.  299,  301  ;  Aldrich  v. 
Martin,  4  R.  I.  520. 


198  MORTGAGES. 

may  lose  the  benefit  of  the  subrogation  by  his  own  laches  in 
suffering  other  persons  to  acquire  a  valuable  interest  in  the 
land  in  consequence  of  his  omitting  to  malie  known  his  own 
claim  upon  it.^ 

§  1147.  Marshalling  the  Securities.  —  There  is  another  prin- 
ciple which  equity  applies  in  the  case  of  two  or  more  parties  in- 
terested in  the  same  mortgaged  property,  which  is  somewhat 
more  arbitrary  in  its  character  than  any  yet  spoken  of.  Thus 
it  seems  to  be  a  well-settled  rule  in  equity,  that  if  a  creditor 
holds  two  mortgages  upon  two  different  estates  to  secure  one 
debt,  and  a  creditor  of  the  same  debtor  has  a  later  mortgage 
to  secure  his  debt  upon  one  only  of  the  parcels,  equity  will 
require  of  the  first  mortgagee  that  he  shall  exhaust  the  secur- 
ity he  has  in  the  parcel  not  covered  by  tlie  second  mortgage 
before  he  shall  come  upon  the  latter  parcel .^  So  if  a  mort- 
gagee hold  collateral  security  also  by  means  of  a  mortgage 
by  a  surety,  equity  would  require  him  to  exhaust  his  mortgage 
security  from  the  principal  before  calling  upon  the  estate 
of  the  surety.^  The  same  rule  would  be  applied  if  one  mort- 
gage covered  two  parcels,  and  a  second  mortgage  were  made 
to  a  third  person  upon  one  of  them.  "  Accordingly,  if  A  has 
a  mortgage  upon  two  different  estates  for  the  same  debt,  and 
B  has  a  mortgage  upon  one  only  of  the  estates  for  another 
debt,  B  has  a  right  to  throw  A,  in  the  first  instance,  for  satis- 
faction upon  the  security  which  he,  B,  cannot  touch  ;  at  least, 
when  it  will  not  prejudice  A's  rights,  or  improperly  control 
his  remedies."  ^  *     But  this  does  not  extend  to  the  case  of 

*  Note.  —  The  authorities,  it  is  believed,  have  all  limited  the  application  of 
this  doctrine  to  cases,  where,  by  compelling  the  first  mortgagee  to  exhaust  one  of 
the  mortgage-funds  before  apj)lying  the  other,  the  right  of  such  mortgagee  to  a 

1  Jarvis  v.  Whitman,  12  B.  Mon.  97. 

2  Powell,  Mortg.  343,  n.  ;  Evertson  v.  Booth,  19  Johns.  486  ;  Hannah  v.  Car- 
riiigton,  18  Ark.  85  ;  Lanoy  v.  Athol,  2  Atk.  446  ;  Mechanics'  Bk.  v.  Edwards, 
1  Barb.  271  ;  Miami  Ex.  Co.  v.  U.  S.  Bk.,  Wright,  Ohib,  249  ;  McLean  v.  Lafayette 
Bk.,  3  McLean,  185  ;  Baine  v.  Williams,  10  S.  &  M.  113  ;  Swigert  v.  Bk.  of  Ken- 
tucky, 17  B.  Mon.  268,  285  ;  Hartley  v.  O'Flaherty,  Lloyd  &  G.  Cas.  temp.  Plun- 
ket,  208  ;  White  v.  Polleys,  20  Wis.  503  ;  Dickson  v.  Chorn,  6  Iowa,  19,  32  ;  Clarke 
V.  Bancroft,  13  Iowa,  320  ;  Story,  Eq.  §  559  ;  Iglehart  v.  Crane,  42  111.  261-269. 

8  Neimcewicz  v.  Gahn,  3  Paige,  642 ;  Wash.  Bldg.  Assoc,  v.  Beaghen,  27  N.  J. 
Eq.  98. 

4  Cowden's  Estate,  1  Penn.  St.  267  ;  Cheesebrough  r.   Millard,   1   Johns.   Ch. 


OF   CONTRIBUTION    TO   REDEEM.  199 

general  creditors.^  And  if  the  first  murtgagee  insist  upon 
availing  himself,  in  the  first  place,  of  the  parcel  mortgaged 
to  the  second  mortgagee,  equity  will  compel  him  to  assign  the 
lien  he  has  upon  the  first  parcel  to  the  second  mortgagee  for 
his  benefit.2  This  rule,  that  a  senior  mortgagee  shall  exhaust 
so  much  of  the  mortgaged  property  as  does  not  secure  a  junior 
mortgage  before  resorting  to  the  part  on  which  the  latter 
relics,  is,  however,  only  applicable  where  it  does  not  prejudice 
the  rights  of  him  who  is  entitled  to  the  double  fund,  and  does 
no  injustice  to  the  common  debtor,  nor  operate  inequitably 
upon  the  interests  of  otiier  persons.^  Where  such  would  be 
the  effect,  equity  would  apportion  the  first  mortgage-debt 
ratably  between  the  two  estates.* 

full  satisfaction  of  his  debt  is  not  thereby  materially  affected ;  equity  merely  pre- 
scribing which  fund  shall  be  first  applied  and  exhausted,  before  the  second  shall  be 
made  use  of.  McGinnis'  Appeal,  16  Penn.  St.  445  ;  Gates  v.  Adams,  24  Vt.  70  ; 
Blair  v.  Ward,  10  N.  J.  Eq.  126  ;  Dickson  v.  Chorn,  6  Iowa,  19,  32.  But  it  seems 
to  be  difficult  to  apply  this  doctrine  in  those  States  where  the  remedy  of  the  mort- 
gagee is  by  a  suit  at  law  in  obtaining  possession  of  the  mortgaged  premises,  and  the 
equity  is  foreclosed  by  mere  lapse  of  time.  When  he  took  his  mortgage  upon  two 
parcels,  the  mortgagee  had  a  clear  right  to  recover  eitlier  or  both  at  his  election. 
And  it  is  difficult  to  see  how  he  should  be  deprived  of  this  by  the  mortgagor's 
making  a  second  mortgage  to  a  stranger  of  the  most  desirable  of  the  two  parcels, 
though  the  other  may  be  of  sufficient  marketable  value  to  satisfy  the  mortgage-debt. 
Besides,  it  is  always  in  the  power  of  the  second  mortgagee,  by  redeeming  the  first 
mortgage,  to  be  substituted  to  the  rights  of  the  first  mortgagee  in  respect  to  both 
parcels  of  estate.  See  Adams,  Eq.  (4th  Am.  ed.)  272  and  note  ;  Fisher,  Mortg. 
395,  in  which  it  is  also  said,  "  Bat  the  court  will  not  interfere  with  the  first  mort- 
gagee's right  to  take  his  de'ot  out  of  that  part  of  his  security  which  first  becomes 
available,  upon  the  ground  that  other  funds  are  comprised  in  his  security  ; "  Wallis 
V.  Woodyear,  2  Jur.  N.  s.  pt.  1,  179.  See  also  Averall  v.  Wade,  Lloyd  &  G.  Cas. 
temp.  Sugden,  252,  255. 

409,  412  ;  Story,  Eq.  §  633  ;  Adams,  Eq.  (Am.  ed.)  272,  n. ;  2  Lead.  Cas.  in  Eq. 
(Am.  ed.)  230;  Fisher,  Mortg.  395,  396;  Reilly  v.  Mayer,  12  N.  J.  Eq.  55,  57; 
Warren  v.  Warren,  30  Vt.  530,  535  ;  Blair  v.  Ward,  10  N.  J.  Eq.  119. 

1  Bank  of  So.  Car.  v.  Mitchell,  Rice,  Eq.  389 ;  State  Bank  v.  Roche,  35  Fia. 
357  ;  s.  c.  17  So.  Rep.  752.  Nor  in  favor  of  one  entitled  to  homestead,  Scarle  v. 
Chapman,  121  Mass.  19  ;  White  v.  Polleys,  20  Wis.  503  ;  nor  of  a  purchaser  of  a 
parcel  of  the  mortgaged  land,  Hawhe  v.  Snydaker,  86  111.  197. 

«  Cheesebrough  v.  Millard,  1  Johns.  Ch.  409. 

'  Ayers  v.  Husted,  15  Conn.  504,  516,  per  Storrs,  J.  See  Pcttibone  v.  Stevens, 
id.  19  ;  Butler  v.  Elliott,  id.  187  ;  Henshaw  v.  Wells,  9  Hum])h.  568  ;  Evertson  v. 
Booth,  19  Jolms.  486  ;  Conrad  v.  Harrison,  3  Leigh,  532  ;  York  Steamboat  Co.  v. 
Jersey  Co.,  Hopk.  Ch.  460  ;  Clarke  v.  Bancroft,  13  Iowa,  320. 

*  Barnes  v.  Racster,  1  Younge  &  C.  Ch.  401.  See  Logan  v,  Anderson,  IS  B. 
Mon.  114. 


200  MORTGAGES. 


CHAPTER  L. 

MORTGAGES  —  OF  ACCOUNTING  BY  THE  MORTGAGEE. 

§  1148.  When  Tuoitgagee  accountable. 

1149.  How  accountable. 

1150.  For  what  accountable. 

1151.  For  what  accountable,  continued. 

1152.  For  what  accountable,  continued. 

1153.  When  accountable  to  subsequent  incumbrancers. 

1154.  How  rents  to  be  applied. 

1155.  Items  of  credit  to  mortgagee. 

1156.  Insuring  mortgaged  premises. 

1157.  Insurance,  continued. 

1158.  Mortgagee  not  bound  to  repair. 

1159.  His  right  to  charge  for  services. 

1160.  When  mortgagee  accountable  for  interest. 

1161.  Application  of  rents. 

1162.  Application  of  rents,  continued. 

1163.  Application  of  rents,  continued. 

§  1148.  When  Mortgagee  accountable.  —  If  the  mortgagor 
undertakes  to  exercise  his  right  of  redeeming  the  mortgaged 
estate,  it  becomes  necessary  to  ascertain  the  amount  that  is 
due  thereon.  If  the  mortgagee  shall  have  been  in  possession 
of  the  premises,  it  becomes  the  right  of  the  mortgagor  and  the 
duty  of  the  mortgagee  that  the  latter  should  render  an  account 
of  his  claim,  in  which  he,  as  a  regular  rule,  charges  the  amount 
of  the  debt  and  interest  secured  by  the  mortgage,  and  credits 
the  estate  with  whatever  rents  and  profits  thereof  he  ought  to 
allow,  over  and  above  reasonable  expenditures  for  taxes,  re- 
pairs, and  other  necessary  expenses,  on  account  of  the  estate. 
Nor  will  the  court  allow  parol  evidence  of  a  stipulation  that 
tlie  rents  received  by  the  mortgagee  in  possession  shall  not  be 
accounted  for.^  And  where  there  were  a  first  and  second  mort- 
gage in  the  hands  of  different  mortgagees,  and  the  holder  oi 
the  first  was  in  possession,  it  was  held  that  the  second  might 

1  Coote,  Mortg.  353,  354  ;  Davis  v.  Lassiter,  20  Ala.  561. 


OF  ACCOUNTING  BY  THE  MORTGAGEE.  201 

hold  the  first  to  account  for  the  rents,  etc.,  of  the  entire  estate. 
And  the  mortgagee  will  not  be  charged  with  the  rents  after 
taking  formal  possession,  if  the  mortgagor,  or  any  one  stand- 
ing in  his  place,  receive  them.^  So  if  one  hold  a  mortgage, 
subject  to  the  mortgagor's  homestead  right,  upon  premises  in 
possession  of  a  prior  mortgagee,  who  holds  independent  of  such 
homestead  claim,  he  cannot  call  on  such  prior  mortgagee  to 
account  for  profits  arising  from  such  right  of  homestead.^ 

§  1149.  How  accountable.  —  As  these  proceedings  are  in 
equity,  this  account  is  taken  under  the  direction  of  a  master 
in  chancery.  And  the  mortgagee  in  possession  is  regarded 
somewhat  in  the  light  of  a  trustee  for  the  mortgagor  in  respect 
to  the  estate,  being  under  obligation  to  account  from  the  time 
he  takes  possession  of  it,^  But  ordinarily  mortgagees,  by 
receiving  the  rents  and  profits  of  mortgaged  premises,  do  not 
become  thereby  the  debtors  of  the  mortgagor,  or  liable  to  be 
sued  for  the  recovery  of  the  same.  And  wiiere  a  mortgagee 
in  possession  let  the  premises  to  another  upon  an  agreement  to 
pay  rent  and  not  commit  waste,  and  the  mortgagor  redeemed, 
it  was  held  that  he  could  not  sue  the  mortgagee's  tenant  upon 
this  agreement.  The  mortgagor's  remedy  for  rents,  etc.,  is  in 
equity,  by  having  the  same  accounted  for  in  a  process  to  re- 
deem.* But  in  Massachusetts,  if  the  mortgagee  has  received 
in  rents  more  than  the  mortgage-debt,  the  court  may,  in  a  suit 
for  redemption,  award  judgment  and  execution  for  the  balance 
due  the  plaintiff  in  such  suit.^  And  the  report  of  ,a  master  as 
to  the  allowance  to  a  mortgagee  for  repairs  and  improvements 
is  conclusive,  unless  a  mistake  clearly  appear.^ 

§1150.  For  what  accountable. — A  mortgagee  is  always 
bound  to  account  for  the  rents  he  actually  receives,  and  some- 
times for  what  it  can  be  shown  he  might  have  received.     A 

1  Bailey  v.  Myrick,  52  Me.  132  ;  Sisson  v.  Tate,  114  Mass.  497,  501  ;  Reynold 
V.  Canal  Co.,  30  Ark.  520. 

2  Sissou  V.  Tate,  114  Mass.  497,  502,  qualifying  Richardson  v.  Wallis,  5  Allen, 
78. 

8  Coote,  Mortg.  355,  366  ;  Powell,  Mortg.  946,  948  a,  n.  ;  Hunt  v.  Maynard, 
6  Pick.  489  ;  Gibson  v.  Crchore,  5  Pick.  146  ;  ante,  §  1054. 

*  Seaver  v.  Durant,  39  Vt.  103. 

6  Pub.  Stat.  c.  181,  §  36. 

6  Adams  v.  Brown,  7  Cush.  220  ;  Bost.  Iron  Co.  v.  King,  2  Cush.  400  ;  Mon- 
tague V.  B.  &  A.  R.  R.,  124  Mass.  242. 


202  MORTGAGES. 

much  greater  degree  of  stringency  in  holding  hira  to  account 
is  applied  where  he  entei's  and  occupies  before  condition  broken, 
than  where,  by  the  laches  of  the  mortgagor  in  not  paying  the 
debt  when  due,  the  mortgagee  is  compelled  to  take  possession 
for  his  own  protection.  Nor  can  he  charge  for  repairs  beyond 
what  is  necessary  for  the  preservation  of  the  estate.^  In  Eng- 
land, the  rule  as  to  accounting  by  the  mortgagee  seems  to  be 
exceedingly  stringent.  Among  the  recent  cases  was  one  where 
A  mortgaged  an  estate  which  contained  coal,  but  no  mine  had 
been  opened  within  it.  Without  taking  formal  possession,  the 
mortgagee  suffered  two  other  persons  to  enter  upon  the  estate 
and  explore  for  coal,  and  work  it,  they  owning  mines  upon  land 
adjoining  the  mortgaged  estate;  and  working  from  their  own 
mine  into  the  premises.  Under  this  permission  they  extracted 
large  quantities  of  coal  through  their  own  mines  from  the  mort- 
gaged estates ;  and  upon  the  mortgagor  undertaking  to  redeem, 
the  court  held  the  mortgagee  accountable  for  the  coal  taken,  upon 
the  ground  that  "  a  mortgagee  w^ho  holds  property  in  pledge  is 
accountable  for  it  in  its  integrity  ; "  "  the  mortgagee  who  allows 
a  stranger  to  deal  with  the  mortgaged  property  is  responsible 
to  the  mortgagor  in  this  court  for  any  damage  that  may  accrue 
by  reason  of  such  dealing."  And  the  mortgagee,  in  this  case, 
was  held  to  account  for  the  full  value  of  the  coal  taken,  with- 
out any  allowance  for  the  cost  of  working  it  and  getting  it  to 
market. 2 

§  1151.  For  what  accountable,  continued. —  Where  he  takes 
possession  for  condition  broken,  he  is  only  accountable  for  what 
he  actually  receives  as  rents  and  profits,  or  might  receive  by 
the  exercise  of  reasonable  care  and  diligence.  Nor  will  he  be 
charged  for  rents  lost  without  his  own  fault.  And,  as  a  gen- 
eral proposition,  he  will  not  be  charged  with  rents  unless  he 
has  received  them,  nor  be  answerable  for  waste  committed 
by  a  tenant  by  digging  up  the  soil,  if  done  without  his  knowl- 
edge and  assent,  nor  for  reasonable  estovers  of  wood  burned 

1  Ruby  V.  Abyssinian  Soc,  15  Me.  306  ;  Lash  v.  Lambert,  15  Minn.  416.  By 
statute  he  is  in  such  case  to  account  for  the  clear  rents  and  profits.  Me.  Rev.  Stat. 
1883,  0.  90,  §  2  ;  Mass.  Pub.  Stat.  c.  181,  §  23.  But  occupancy  by  the  mortgagee 
of  premises  of  which  her  husband  was  tenant  does  not  compel  her  to  account  for 
rent.     Sanford  f.  Pierce,  126  Mass.  146. 

«  Hood  V.  Eastou,  2  Giff.  692.      See  also  Thornej'croft  v.  Crockett,  16  Sim.  445. 


OF  ACCOUNTING  BY  THE  MORTGAGEE.         203 

upon  the  premises. ^  But  in  Pennsylvania,  it  was  held  that  a 
mortgagee  in  possession  is  liable  for  waste  as  well  as  for  prof- 
its of  the  land.2  His  duty,  where  possession  is  taken  in  such 
a  case,  is  said  to  be  that  of  a  provident  owner.^  But  he  may 
not  turn  off  a  good  tenant,  or  refuse  a  higher  rent,  without 
becoming  thereby  responsible  for  the  rent  lost.*  So  if  he 
assigns  the  premises  to  an  insolvent,  and  puts  him  into  pos- 
session, he  may  be  charged  with  the  rent  if  the  mortgagor 
redeems.^  The  rule  in  such  cases  is  stated  to  be  :  "  Where 
a  mortgagee  enters,  he  is  to  take  the  fair  rents  and  profits  of 
the  land,  but  is  not  bound  to  engage  in  any  speculations  for 
the  benefit  of  his  mortgagor,  but  is  only  liable  for  wilful  de- 
fault." ^  Nor  will  he  be  charged  with  higher  rent  than  that 
received  under  a  fair  bargain,  although,  after  having  entered 
into  it  with  his  tenant,  the  solicitor  of  the  mortgagor  might 
offer  him  a  larger  sum.'^  Accordingly,  if  the  premises  are  sub- 
ject to  a  lease,  and  he  enters  and  claims  the  rents,  he  will  be 
charged  with  the  same  at  the  rate  at  which  they  are  reserved.^ 
If  he  enter  and  occupy  the  premises  himself,  he  will  be  charged 
at  the  full  value  of  the  premises.^ 

1  George  y.  Wood,  11  Allen,  41;  Hubbard  v.  Shaw,  12  Allen,  120;  Onder- 
donk  V.  Gray,  19  N.  J.  Ei^.  65  ;  Milliken  v.  Bailey,  61  Me.  316  ;  Miller  v.  Lin- 
coln, 6  Gray,  556 ;  Richardson  v.  Wallis,  5  Allen,  78  ;  Gerrish  v.  Black,  104 
Mass.  400.  But  he  is  liable  for  negligence  of  his  agent,  though  selected  with  care, 
Montague  v.  B.  &  A.  R.  R.,  124  Mass.  242. 

2  Guthrie  v.  Kahle,  46  Penn.  St.  331  ;  Givens  v.  M'Calmont,  4  Watts,  460. 

8  Powell,  Mortg.  949  ;  Coote,  Mortg.  555-557  ;  Robertson  v.  Campbell,  2  Call, 
421  ;  Anonymous,  1  Vern.  45  ;  Hughes  v.  Williams,  12  Ves.  493  ;  Saunders  v. 
Frost,  5   Pick.   259;  Shaffer  v.  Chambers,  6  N.  J.   Eq.  548;  Benham  v.  Rowe, 

2  Cal.  387  ;  Van  Buren  v.  Olmstead,  5  Paige,  9  ;  Hogan  i-.  Stone,  1  Ala.  496  ; 
Sloan  V.  Frothinghain,  72  Ala.  589  ;  Butts  v.  Broughton,  id.  294 ;  Baiubridge  v. 
Owen,  2  J.  J.  Marsh.  463  ;  Sparhawk  v.  Wills,  5  Gray,  423  ;  Richardson  v.  Wallis, 
5  Allen,  78  ;  Strong  v.  Blanchard,  4  Allen,  538,  544  ;  Montague  v.  B.  &  A.  R.  R., 
124  Mass.  242  ;  Fisher,  Mortg.  491. 

*  Hughes  V.  Williams,  12  Ves.  493 ;  Anonymous,  1  Vern.  45  ;  Coote,  Jlortg. 
557  ;  Powell,  Mortg.  949  a. 

5  Coote,  Mortg.  561  ;  Hagthorp  v.  Hook,  1  Gill  &  J.  270  ;  Neale  v.   Hngthrop, 

3  Bland,  551,  590  ;  ]\Iiller  v.  Lincoln,  6  Gray,  556,  where  the  mortgagee  was  ex- 
onerated from  such  a  charge  for  sufficient  time  to  expel  the  insolvent  by  legal 
process,  and  obtain  a  responsible  tenant.     Thayer  v.  Richards,   19  Pick.   398. 

6  Hughes  V.  Williams,  12  Ves.  493  ;  Powell,  Mortg.  950  ;  Fisher,  Mortg.  492. 

7  Hubbard  v.  Shaw,  12  .\llen,  120. 

8  Trimleston  v.  Hamill,  1  Ball  &  B.  385. 

9  Gonlon  v.  Lewis,  2  Sumn.   143;  Trulock  v.  Robey,  15  Sim.   265;  Holabird 


204  MORTGAGES. 

§  1152.  For  what  accountable,  continued.  —  But  he  will  not 
be  charged  for  rents  and  profits  before  he  enters/  nor  for  rents 
upon  permanent  improvements  made  by  himself.^  Though  it 
was  held  otherwise  where  he  had  been  paid  the  expense  of 
them  by  their  use,^  and  where  they  have  been  made  by  a 
wrongful  occupant,  or  by  a  purchaser  under  the  mortgagor.* 
And  where  the  mortgagee  of  wnld  land  cleared  and  cultivated 
it,  he  was  charged  with  the  improved  rent  arising  from  such 
clearing.^  And  where  the  mortgagee  took  a  conveyance  from 
the  mortgagor  and  entered  under  it,  the  premises  then  being 
under  attachment  at  a  suit  against  the  mortgagor,  upon  which 
the  equity  of  redemption  was  afterwards  sold,  it  was  held  that 
the  mortgagee  was  not  accountable  for  the  rents  of  the  prem- 
ises to  the  purchaser  of  the  equity  until  he  had  entered  under 
the  levy.^ 

§  1153.  "When  accountable  to  Subsequent  Encumbrancers.  — 
As  subsequent  incumbrancers  are  interested,  just  as  the  mort- 
gagor is  himself,  in  the  question  of  how  far  a  prior  mortgagee 
shall  be  charged,  since  they  may  be  obliged  to  redeem  from 
him  in  order  to  avail  themselves  of  their  security,  whatever 
has  been  laid  down  in  respect  to  the  mortgagor  applies  also  to 
them  if  they  undertake  to  redeem,  except  so  far  as  want  of 
notice  of  the  mortgagee's  title  may  affect  or  enlarge  their 
rights.  Thus,  while  a  mortgagee  in  possession  under  two 
mortgages  may,  on  a  bill  by  an  attaching  creditor  of  the  mort- 
gagor to  redeem  from  the  first,  apply  the  rents  received  to  the 
second  only,  and  compel  payment  in  full  of  the  first ;  he  can- 
not do  this  if  the  creditor  had  no  notice,  express  or  implied, 
of  the  second.^  There  may  be,  moreover,  cases  where  the  first 
mortgagee,  by  some  arrangement  with  the  mortgagor,  permits 

V.  Burr,  17  Conn.  556  ;  Kellogg  v.  Rockwell,  19  Conn.  446  ;  Trimleston  v.  Hamill, 
1  Ball&  B.  379,  385;  Montgomery  v.  Chadvvick,  7  Iowa,  114,  134;  Barnett  v. 
Nelson,  54  Iowa,  41  ;  Sanders  v.  Wilson,  34  Vt.  138. 

1  Cliase  V.  Palmer,  25  Me.  341  ;  Powell  v.  Williams,  14  Ala.  476. 

2  Bell  V.  The  Mayor,  10  Paige,  49 ;  Moore  v.  Cable,   1  Johns.   Ch.  385  ;  Mont- 
gomery V.  Chadwick,  7  Iowa,  134. 

8  Oivens  V.  M'Calmont  4  Watts,  460. 

*  Merriam  v.  Barton,  14  Vt.  501  ;  Stoney  v.  Shultz,  1  Hill,  Ch.  465. 

5  Morrison  v.  M'Leod,  2  Ired.  Eq.  108. 

6  Lamson  v.  Drake,  105  Mass.  564. 

7  Proctor  V.  Green,  59  N.  H.  350. 


OF  ACCOUNTING  BY  THE  MORTGAGEE.  205 

him  to  take  the  rents,  and  does  not  take  them  himself.  And 
questions  have  arisen,  whether  and  how  far  a  mortga<^ee  who 
has  taken  possession,  and  suffers  the  mortgagor  to  take  the 
rents  and  profits,  is  chargeable  therefor  to  subsequent  mort- 
gagees. The  rule,  as  given  by  Powell,  is  this:  "If  the 
mortgagee  enter  upon  the  estate,  and  thereby  keep  other 
incumbrancers,  of  whose  liens  he  has  notice,  out,  he  will  be 
charged  with  all  the  profits  he  hath  or  might  have  received 
after  his  entry."  "  And  if  a  mortgagee  permit  the  mortgagor 
to  make  use  of  his  incumbrance  to  keep  out  other  creditors,  he 
will  be  charged  with  the  profits  from  the  time  that  they  would 
have  had  a  remedy,  had  it  not  been  for  his  interposition  ;  for 
equity  will  not  suffer  a  man  to  make  use  of  his  securities  to 
protect  a  debtor  from  the  just  demands  of  his  creditors."  And 
Coote  says  ;  "  If  a  mortgagee  acts  mala  fide,  either  with  regard 
to  subsequent  incumbrancers  or  creditors  of  the  mortgagor,  he 
will  be  personally  responsible  ;  as,  for  example,  if  he  permit 
the  mortgagor  to  make  use  of  his  mortgage  as  the  first  incum- 
brancer to  keep  out  other  creditors."  ^  In  Massachusetts,  how- 
ever, it  was  held  in  one  case,  that  where  a  purchaser  of  the 
equity  of  redemption,  in  order  to  prevent  his  creditors  from 
attaching  the  crops,  gave  the  assignee  of  the  first  mortgage 
formal  possession,  and  a  certificate,  that  the  mortgagee  had 
taken  peaceable  possession,  was  indorsed  on  the  assigned  mort- 
gage, and  recorded  in  the  manner  required  by  law  for  fore- 
closure ;  2  yet,  as  the  holder  of  the  equity  remained  in  actual 
possession,  the  first  mortgagee  should  not,  on  a  bill  by  the 
second  mortgagee  to  redeem,  be  charged  with  the  rents  from 
the  time  of  his  having  made  his  entry  and  recorded  the  cer- 
tificate thereof.  No  case  is  cited  by  the  court  sustaining  their 
opinion,  though  reference  is  made  to  the  language  of  the 
statute.^     It  would  seem,  therefore,  that  the  principle,  that  a 

1  Powell,  Mortg.  949  b,  and  951  a  ;  Coote,  Mortg.  557  ;  Flint.  Keal  Prop.  238  ; 
2  Cruise,  Dig.  88  ;  Coppring  v.  Cook,  1  Vern.  270  ;  Chapman  v.  Tanner,  id.  267  ; 
Gibson  v.  Crehore,  5  Pick.  146  ;  Acland  v.  Gaisford,  2  Madd.  28. 

2  By  statute  in  Massachusetts,  one  mode  of  foreclosure  is  by  a  peaceable  entry, 
and  holding  for  three  years  after  certificate  of  such  entry  duly  filed  in  the  registry 
of  deeds.     Mass.  Pub.  Stat.  1881,  c.  181,  §§  1,  2. 

3  Charles  v.  Dunbar,  4  Met.  498.  See  7  Law  Piep.  22.  The  conclusion  of  the 
opinion  is  in  these  words:  "  Nor  do  we  think  that  the  purpose  of  the  formal  entry, 


206  MORTGAGEES. 

mortgagee  may  take  possession  of  mortgaged  premises  for  the 
purpose  of  preventing  the  creditors  of  the  mortgagor  attaching 
the  crops,  without  thereby  becoming  liable  to  account  for  the 
rents  to  after-mortgagees,  who,  after  yielding  to  the  statute 
evidence  of  the  first  mortgagee's  possession,  may  seek  to  re- 
deem, is  to  be  regarded  as  the  local  law  of  Massachusetts.^ 

§  1154.  How  Rents  to  be  applied.  —  It  was,  on  the  other 
hand,  held  by  the  same  court,  that  if  one  owns  the  equity  of 
redemption  of  a  mortgaged  estate,  and  also  holds  one  of  several 
mortgages  upon  the  same,  and  makes  an  entry  under  his  mort- 
gage and  receives  the  rents  of  the  premises,  he  is  not  at  liberty 
to  say  that  he  takes  them  as  mortgagor,  but  shall  account  for 
them  as  mortgagee  to  any  one  redeeming  the  estate. ^  And  a 
second  mortgagee,  having  satisfied  a  prior  mortgage,  upon 
which  the  mortgagee  has  received  rents,  may,  after  notice, 
claim  of  such  first  mortgagee  any  surplus  of  rents  remaining 
in  his  hands  not  yet  fully  accounted  for  to  the  mortgagor,  so 
far  as  the  same  are  necessary  to  satisfy  his  own  mortgage.^  If 
a  mortgagee  continue  to  hold  possession,  or  receive  rents  of 
the  estate  after  his  debt  has  been  satisfied,  he  will  be  account- 
able for  such  rent,  together  with  interest  thereon.^ 

§  1155.  Items  of  Credit  to  Mortgagee.  —  Among  the  items  of 
charge  which  a  mortgagee  in  possession  may  make  against  the 
estate,  when  called  upon  to  render  an  account  for  purposes  of 
redemption,  is  the  expense  of  keeping  the  premises  in  repair. 
But  this  does  not  extend  to  additions  to  the  estate,  nor  to  new 
and  ornamental  improvements  ;  and,  even  as  to  repairs,  they 

namely,  to  aid  the  mortgagor  in  withholding  from  the  attachment  of  other  creditors 
the  produce  of  the  farm,  affects  the  present  question.  If  the  possession  was  not 
in  the  mortgagee,  the  creditors  might  have  made  valid  attachments  of  the  produce  of 
the  farm.  They  did  not  interfere,  however  ;  and  we  think  the  purpose  of  the  first 
mortgagee's  entry  does  not  enlarge  the  rights  of  the  second  mortgagee  as  against  tlie 
first,  nor  authorize  the  second  to  charge  the  first  with  the  use  and  income  of  tlie 
premises  during  the  time  that  the  mortgagor  actually  retained  the  possession." 

1  In  Richardson  i-.  Wallis,  5  Allen,  78,  80,  the  court  seemed  inclined  to  limit 
the  doctrine  of  Charles  v.  Dunbar  to  cases  of  simple  entry  by  the  mortgagee  for 
purposes  of  foreclosure,  without  implying  that  this  may  be  successfully  made  an 
instrument  of  fraud. 

3  Gibson  v.  Crehore,  5  Pick.  146. 

8  Gordon  v.  Lewis,  2  Sumn.  143. 

*  Powell,  Alortg.  948  a,  note. 


OP  ACCOUNTING  BY  THE  MORTGAGEE.         207 

must  be  such  as  benefit  it.^  The  rule  given  in  the  court  of 
Pennsylvania  is,  that  he  may  not  charge  for  costly  or  per- 
manent improvements  without  the  assent  of  the  mortgagor, 
but  would  be  restricted  to  such  only  as  would  preserve  the 
estate  from  dilapidation; 2  unless  additions  like  buildings  are 
put  up  on  the  premises  by  the  mortgagees,  by  the  consent  and 
agreement  of  the  mortgagor  that  the  mortgagee  might  hold 
them  for  security  under  the  mortgage.^  The  test  as  to  allow- 
ing for  improvements  seems  to  be,  wiiether  they  are  necessary 
to  the  convenient  occupation  of  the  estate.  Tims  the  cost  of 
an  aqueduct  was  allowed  which  was  necessary  for  supplying 
water ;  ^  while  expenses  in  merely  increasing  the  speed  of  a 
mill,  but  not  necessary  to  its  operating  in  its  accustomed  man- 
ner, were  disallowed.^  In  one  case,  a  mortgagee  was  allowed 
for  large  sums  expended  in  working  a  mine  which  he  had  a 
right  to  work.^  In  another,  expenses  incurred  in  opening  a 
mine  were  disallowed.'^  While  in  another,  the  mortgagee  in 
possession,  having  cleared  land  and  erected  a  mill  thereon,  and 
having  derived  profit  enough  from  running  it  to  reimburse  him 
for  his  expenses,  was  charged  with  the  rent  of  the  premises  in 
their  improved  condition.^  The  rules  upon  this  subject  do  not 
seem  to  be  uniform.  In  some  of  the  States,  a  mortgagee  is 
allowed  to  charge  for  beneficial  and  lasting  improvements.^ 
And  this  is  sometimes  the  case  even  in  England. ^*^     And  such 

1  Lowndes  v.  Chisolm,  2  McCoid,  Ch.  455  ;  Hagthorp  v.  Hook,  1  Gill  &  J.  270  ; 
Quin  V.  Brittain,  Hoflf.  Ch.  353  ;  Russell  v.  Blake,  2  Pick.  505 ;  Reed  v.  Reed,  10 
Pick.  398  ;  Moore  v.  Cable,  1  Jolms.  Ch.  385,  where  a  claim  for  clearing  wild  lands 
was  disallowed  ;  Dougherty  v.  McOolgan,  6  Gill  &  J.  275  ;  Hopkins  v.  Stephenson, 
1  J.  J.  Marsli.  341  ;  Woodward  v.  Phillips,  14  Gray,  132  ;  Strong  v.  Blanehard, 
4  Allen,  538;  Mass.  Pub.  Stat.  1881,  c.  181,  §23;  Fisher,  Mortg.  495;  Jones, 
Mortg.  §§  1126-1131. 

2  Harper's  App.,  64  Penn.  St.  315. 

8  Crafts  V.  Crafts,  13  Gray,  360,  363. 

*  Saunders  v.  Frost,  5  Pick.  259  ;  McCarron  v.  Cassidy,  18  Ark.  34  ;  Mickles  v, 
Dillaye,  17  N.  Y.  80;  Gordon  v.  Lewi.s,  2  Sumn.  143;  Lowndes  v.  Chisolm,  2  Mc- 
Cord,  Ch.  455  ;  McConnel  v.  Holobush,  11  111.  61  ;  Sparhawk  v.  Wills,  5  Gray,  423; 
Tharp  v.  Feltz,  6  B.  Mon.  6,  15;  McCumber  v.  Gihnan,  15  111.  381. 

6  Clark  V.  Smith,  1  N.  J.  Eq.  121. 

«  Norton  v.  Cooper,  39  E.  L.  &  Eq.  130. 

^  Thorneycroft  v.  Crockett,  16  Sim.  445. 

*  Givens  v.  M'Calniont,  4  Watts,  460. 

9  Bollinger  v.  Chouteau,  20  Mo.  89  ;  Ford  v.  Philpot,  5  Harr.  &  J.  312. 
w  Exton  V.  Greaves,  1  Vern.  138  ;  Talbot  v.  Brodhill,  id.  183,  n. 


208  MORTGAGES. 

would  probably  be  uniformly  the  rule  where  the  mortgagee  in 
making  such  improvements  supposed  himself  to  be  the  absolute 
owner,^  or  the  person  who  made  them  was  an  innocent  pur- 
chaser,^  or  did  it  by  consent  and  agreement  of  the  mortgagor,^ 
Or  where  the  mortgagor,  knowing  they  were  being  made,  and 
having  an  opportunity  so  to  do,  made  no  objection.*  If  a  mort- 
gagee in  possession  is  subjected  to  expenses  in  defending  the 
title  to  the  estate,  he  may  charge  for  any  sum  reasonably  in- 
curred in  so  doing,^  including  counsel  fees  necessarily  paid  in 
collecting  the  rents  and  profits  of  the  premises,  but  not  in  pros- 
ecuting his  claim  against  the  mortgagor,^  and  for  discharging 
prior  incumbrances.'  But  a  stipulation  in  a  mortgage  was  held 
good  whereby  the  mortgagee  might  charge  a  reasonable  attor- 
ney's fee,  if  he  was  obliged  to  resort  to  legal  process  to  fore- 
close the  mortgage.^  So  he  may  charge  for  the  sums  paid  for 
taxes  upon  the  premises,  as  well  as  for  assessments  which  he 
has  been  obliged  to  pay  in  order  to  preserve  the  security.^  If, 
however,  the  land  be  lost  by  failure  to  pay  the  tax  upon  it,  the 
mortgagor  cannot  charge  the  loss  upon  the  mortgagee.^^  But 
as  a  general  proposition,  if  no  provision  is  made  in  the  mort- 
gage for  insuring  the  premises,  a  mortgagee  has  no  right  to 
charge  in  his  account  for  premiums  paid  for  effecting  insur- 
ance upon  the  mortgaged  premises.^^    In  Slee  v.  Manhattan  Co., 

1  McConnel  v.  Hololiush,  11  111.  61  ;  Neale  v.  Hagthrop,  3  Bland,  551,  590  ; 
Thome  v.  Newman,  Cas.  temp.  Finch,  38 ;  Mickles  v.  Dillaye,  17  N.  Y.  80  ;  Barnard 
V.  Jennison,  27  ^lich.  230. 

2  Bradley  v.  Snyder,  14  111.  263. 

8  Cazenove  v.  Cutler,  4  Met.  246  ;  McSorley  v.  Larissa,  100  Mass.  270. 
*  Montgomery  v.  Chadwick,  7  Iowa,  114,  135. 

5  Godfrey  v.  Watson,  3  Atk.  518;  Powell,  Mortg.  986,  n.;  Hagthorp  v.  Hook, 
1  Gill  &  J.  270  ;  Coote,  Mortg.  354  ;  Clark  v.  Smith,  1  N.  J.  Eq.  121 ;  Miller  v.  Whit- 
tier,  36  Me.  577;  Riddle  v.  Bowman,  27  N.  H.  236  ;  McCumber  w.  Gilman,  15  111.  381. 

6  Hubbard  v.  Shaw,  12  Allen,  120 ;  Bost,  etc.  R.  R.  v.  Haven,  8  Allen,  359. 
T  Page  V.  Foster,  7  N.  H.  392  ;  Fisher,  Mortg.  494. 

8  Weatherby  v.  Smith,  30  Iowa,  131. 

9  Faure  y.  Winans,  Hopk.  Ch.  283  ;  Williams  v.  Hilton,  35  Me.  547;  Kortright 
V.  Cady,  23  Barb.  490  ;  Bollinger  v.  Chouteau,  20  Mo.  89  ;  Mix  v.  Hotchkiss,  14 
Conn.  32  ;  Eagle  Ins.  Co.  v.  Pell,  2  Edw.  Ch.  631  ;  Robinson  v.  Ryan,  25  N.  Y.  320, 
327  :  Silver  Lake  Bk.  v.  North,  4  Johns.  Ch.  370  ;  Harper  v.  Ely,  70  111.  581.  But 
aliter  where  the  mortgagee  was  liable  for  the  tax  on  his  covenant  against  incum- 
brances.    Davis  V.  Bean,  114  Mass.  358. 

1"  Harvie  v.  Banks,  1  Rand.  408. 

"  Saunders  v.  Frost,  5  Pick.  259  ;  Dobson  y.  Land,  8  Hare,  216  ;  White  v.  Brown, 


OF  ACCOUNTING  BY  THE  MORTGAGEE.  209 

where  the  mortgagees  had  long  been  in  possession  of  the  prem- 
ises, the  court  allowed  them  to  charge  for  insurance  and  taxes, 
and  money  paid  for  repairs,  "  under,"  as  they  say,  "  the  peculiar 
circumstances  of  the  case."  ^ 

§  1156.  Insuring  Mortgaged  Premises.  —  But  if  the  condition 
of  the  mortgage  requires  the  mortgagor  to  keep  the  premises 
insured  for  the  benefit  of  the  mortgagee,  and  he  fails  to  do  so, 
the  mortgagee  may  cause  insurance  to  be  made,  and  charge  the 
premium  to  his  account  with  the  estate.^  In  such  a  case,  both 
the  mortgagor  and  the  mortgagee  may  insure  their  respective 
interests.  And  if  the  mortgagor  insures  his,  and  the  property 
is  destroyed,  the  mortgagee  may  not  claim  a  right  to  be  sub- 
rogated to  the  benefit  of  the  insurance,  unless  there  be  a 
covenant  on  the  part  of  the  mortgagor  to  keep  the  premises 
insured  for  the  benefit  of  the  mortgagee,  or  that  the  insurance- 
money  should  go  to  repair  them  if  destroyed.^  A  mortgagor 
has  an  insurable  interest  in  the  full  value  of  the  estate  mort- 
gaged.^ So  if  the  mortgagee  insure  his  interest,  and  there  is 
a  loss,  the  premium  having  been  paid  out  of  his  own  funds,  he 
is  not  bound  to  account  to  the  mortgagor  for  any  part  of  the 
insurance-money,  nor  to  apply  it  in  payment  of  his  debt  which 
is  secured  by  the  mortgage.^  But  if  insurance  be  effected  at  the 
request  and  cost  of  the  mortgagor,  and  for  the  benefit  of 
the  mortgagee  and  mortgagor,  the  latter  has  a  right  to  have 
the  money  received  applied  in  discharge  of  the  indebtedness  ;^ 
and  in  such  case,  if  there  be  any  surplus  beyond  satisfying 
the  mortgage-debt,  the  mortgagee  holds  it  in  trust  for  the 
mortgagor  or  his   assigns.     And    in   such  case,  if  the  mort- 

2  Cush.  412 ;  King  i'.  State  Ins.  Co.,  7  Cash.  1  ;  Clark  v.  Smith,  1  N.  J.  Eq.  121  ; 
Fisher,  Mortg.  493  ;  Bost.,  etc.  R.  R.  v.  Haven,  8  Allen,  359. 

1  1  Paige,  81. 

2  Fowley  v.  Palmer,  5  Gray,  549  ;  Nichols  v.  Baxter,  5  R.  I.  491. 

3  Fanre  v.  Winans,  Hopk.  Ch.  283  ;  De  Forest  v.  Fulton  lus.  Co.,  1  Hall,  84, 
103  ;  Carter  v.  Rockett,  8  Paige,  437;  Vandegraaff  y.  Medlock,  3  Port.  389;  Thomas 
V.  Vonkapff,  6  Gill  &  J.  372  ;  Vernou  v.  Smith,  5  B.  &  Aid.  1;  Nichols  v.  Baxter, 
5  R.  I.  491. 

*  Strong  V.  Manuf.  Ins.  Co.,  10  Pick.  40  ;  Nichols  v.  Baxter,  supra. 

5  King  V.  State  Ins.  Co.,  7  Cash.  1  ;  iEtna  Ins.  Co.  v.  Tyler,  16  Wend.  385  ; 
Carpenter  v.  Prov.  Ins.  Co.,  16  Pet.  495;  White  v.  Brown,  2  Cush.  412  ;  Russell 
V.  Southard,  12  How.  139. 

^  Concord,  etc.  Ins.  Co.  v.  Woodbury,  45  Me.  447;  Gordon  v.  Ware  Sav.  Bk., 
115  Mass.  588. 

VOL.   II.  — 14 


210  MORTGAGES. 

gagor  sell  his  interest  in  the  estate,  and  a  loss  happen,  the 
purchaser  may  require  the  mortgagee  to  collect  and  apply  the 
insurance-money  towards  the  debt,  and  cancel  it  so  far  as  it 
pays.^  The  insurable  interest  of  a  mortgagee  is  measured  by 
the  amount  of  his  claim.^  But  it  is  held  by  many  courts  that 
if  a  mortgagee  recovers  to  his  own  use  upon  a  policy  of  insur- 
ance taken  in  his  own  name,  where  the  premium  has  been 
paid  by  himself,  the  insurer  is  entitled  to  be  subrogated  to 
the  right  of  such  mortgagee,  in  respect  to  the  estate  and  the 
mortgage-debt,  for  an  amount  corresponding  to  the  insurance 
paid ;  ^  though  this  is  denied  to  be  law  in  Massachusetts.*  *    So 

*  Note.  —  The  case  of  King  v.  The  State  Mat.  Fire  Ins.  Co.,  7  Cush.  1,  involves 
a  principle  so  practical  in  its  application,  and  so  ably  considei'ed  by  the  court,  that 
it  seems  to  be  proper  to  give  some  of  the  more  prominent  points  contained  in  the 
opinion  of  Shaw,  C.  J.  :  — 

"  We  understand  from  the  statement,  and  from  the  policy  which  is  made  part 
of  it,  that  the  plaintiff  (the  mortgagee)  made  the  insurance  in  his  own  name, 
and  for  his  own  benefit,  not  describing  his  interest  as  that  of  mortgagee,  and 
paid  the  premium  out  of  his  own  funds."  The  opinion  then  goes  on  to  state 
that  the  defendants  (the  Insurance  Company)  admit  the  loss  by  fire,  but  claim 
the  right  of  having  an  assignment  of  the  plaintiffs  interest,  or  such  part  of  it 
as  the  amount  they  would  have  to  pay  would  bear  to  the  whole  mortgage-debt, 
made  to  them.  The  case  turned  upon  the  question,  whether  the  defendants  had 
a  right  to  have  such  assignment  made.  "  The  court  are  of  opinion  that  tlif 
plaintiff,  having  insured  for  his  own  benefit,  and  paid  the  premium  out  of  his  own 
funds,  and  the  loss  having  occurred  by  the  peril  insured  against,  he  has,  prima 
facie,  a  good  right  to  recover ;  and,  having  the  same  insurable  interest  at  the 
time  of  the  loss  which  he  had  at  the  time  of  the  contract  of  insurance,  he  is 
entitled  to  recover  a  total  loss.  The  court  are  further  of  opinion,  that  if  the 
defendants  could  have  any  claim,  should  the  plaintiff  hereafter  recover  his  debt 
in  full  of  the  mortgagor,  it  must  be  purely  equitable ;  that  the  defendants  can 
have  no  claim  until  such  money  is  recovered,  if  at  all."  "We  are  inclined  to  the 
opinion,  both  upon  principle  and  authority,  that  where  a  mortgagee  causes  insur- 
ance to  be  made  for  his  own  benefit,  paying  the  premium  from  his  own  funds,  in 
case  a  loss  occurs  before  his  debt  is  paid,  he  has  a  right  to  receive  the  total  loss 
for  his  own  benefit ;  that  he  is  not  bound   to   account  to   the  mortgagor  for  any 

^  Graves  v.  Hampd.  Ins.  Co.,  10  Allen,  281. 

2  Cases  cited  above.     See  also  Sussex  Ins.  Co.  v.  Woodruff,  26  N.  J.  541. 

3  Sussex  Ins.  Co.  v.  Woodruff,  supra  ;  Smith  v.  Columbia  Ins.  Co.,  17  Penn.  St. 
253  ;  Kernochan  v.  N.  Y.  Bowery  Ins.  Co.,  17  N.  Y.  428. 

*  King  V.  State  Ins.  Co.,  7  Cush.  1.  See  Dobson  v.  Land,  8  Hare,  216  ;  Fisher, 
Mortg.  494  ;  Suff.  Ins.  Co.  v.  Boj'den,  9  Allen,  123,  affirming  King  v.  State  Ins. 
Co. ;  Graves  v.  Hampd.  Ins.  Co.,  10  Allen,  281  ;  Clark  v.  Wilson,  103  Mass.  219, 
221.  It  is,  however,  admitted  that  the  insurers  may  be  subrogated  to  any  action  of 
tort  brought  for  the  loss.     Merc.  Mar.  Ins.  Co.  i;.  Clark,  118  Mass.  288. 


OF   ACCOUNTING    BY   THE   MORTGAGKK.  211 

where  one  in  Vermont,  who  held  an  insurance  policy  against 
accidents,  was  injured  by  reason  of  a  defect  in  the  highway, 
and  for  which  he  recovered  damages  under  his  policy  from  the 
insurance  company,  it  was  iicld  that  this  recovery  was  no  bar 
to  his  action  against  the  town  to  recover  damages  for  the 
injury  sustained  by  him.^ 

§  1157.  Insurance,  continued.  —  An  alienation  of  insured 
premises  usually  vacates  a  policy  by  its  terms.  And  by  alien- 
ation is  meant  an  act  whereby  one  man  transfers  the  property 
and  possession  of  land  or  other  things  to  another.^    And  ques- 

part  of  the  money  so  recovered  as  a  part  of  tlie  mortgage-debt ;  it  is  not  a  pay- 
ment in  whole  or  in  part ;  but  he  still  has  a  right  to  recover  his  whole  debt  of  the 
mortgagor.  And  so,  on  the  other  hand,  when  the  debt  is  thus  paid  by  the  debtor, 
the  money  is  not,  in  law  or  equity,  the  money  of  the  insurer  who  has  thus  paid  the 
loss,  or  money  paid  for  his  use." 

"There  is  no  privity  of  contract  or  estate,  in  fact  or  in  law,  between  the  in- 
surer and  the  mortgagor,  but  each  has  a  separate  and  independent  contract  with 
the  mortgagee.  On  what  ground,  then,  can  the  money  thus  jiaid  by  the  insurer 
to  the  mortgagee  be  claimed  by  the  mortgagor  ?  But  if  he  cannot,  it  seerns,  a 
fortiori,  that  the  insurer  cannot  claim  to  charge  his  loss  upon  the  mortgagor, 
which  he  would  do  if  he  were  entitled  to  an  assignment  of  the  mortgage-debt, 
either  in  full  ov  pro  tanto." 

"What,  then,  is  there  inequitable  on  the  part  of  the  mortgagee  towards  either 
party  in  holding  both  sums  (the  debt  and  the  insurance  money)  ?  They  are  both 
due  upon  valid  contracts  with  him,  made  upon  adequate  considerations  paid  by 
himself.  There  is  nothing  inequitable  to  the  debtor,  for  he  pays  no  more  than  he 
originally  received  in  money  loaned  ;  nor  to  the  underwriter,  for  he  has  only  paid 
upon  a  risk  voluntarily  taken,  for  which  he  was  paid  by  the  mortgagee  a  full  and 
satisfactory  equivalent." 

"On  a  view  of  the  whole  question,  the  court  are  of  opinion  that  a  mortgagee 
who  gets  insurance  for  himself,  when  the  insurance  is  general  upon  the  property, 
without  limiting  it  in  terms  to  his  interest  as  mortgagee,  but  when  in  point  of  fact 
his  only  insurable  interest  is  that  of  a  mortgagee,  in  case  of  a  loss  by  fire  before 
the  payment  of  the  debt  and  discharge  of  the  mortgage,  has  a  right  to  recover  the 
amount  of  the  loss  for  his  own  use."  But  the  insurable  interest  of  the  mortgagee 
is  defeated  by  a  payment  of  the  debt  by  the  mortgagor.  Graves  v.  Hampden  Ins. 
Co.,  10  Allen,  281,  283. 

The  court  also  refer  to  the  case  of  Dobson  v.  Land,  8  Hare,  216,  and  the  com- 
ments upon  it  in  the  London  Jurist,  contained  in  13  Law  Reporter,  247,  wherein 
a  point  stated  in  another  part  of  this  work  was  sustained,  that  a  mortgagee  has  no 
right  to  cause  the  premises  to  be  insured,  and  charge  the  same  to  the  estate,  in  the 
absence  of  an  express  agreement  to  that  effect  by  the  mortgagor  when  making  the 
mortgage.    See  Fisher,  Mortg.  494. 

1  Harding  v.  Townshend,  43  Vt.  536  ;  Clark  v.  Wilson,  103  Mass.  219. 

2  Boyd  V.  Cudderback,  31  111.  113,  119. 


212  MORTGAGES. 

tions  have  arisen  how  far  this  principle  would  apply  where 
the  insurance  has  been  effected  by  a  mortgagor  intended  for 
the  security  of  the  mortgagee  of  the  premises  insured. 
Where  this  was  done  by  the  mortgagor  assigning  the  policy 
to  the  mortgagee,  who  afterwards  purchased  the  mortgagor's 
interest  in  the  premises,  it  was  held  to  vacate  it.^  So  where 
the  mortgagor  assigned  the  policy  to  the  mortgagee,  and  sub- 
sequently aliened  the  estate  to  a  third  party,  it  was  held  to 
vacate  the  policy .^  But  where  the  assignment  was  made  to 
the  mortgagee  by  consent  of  the  company,  who  took  from  the 
assignee  an  agreement  to  pay  subsequent  instalments,  etc.,  it 
was  held  that  a  subsequent  alienation  would  not  defeat  the 
policy  in  the  assignee's  hands.^  Where  there  is  a  condition  in 
the  mortgage  or  contract  between  the  parties  that  the  mort- 
gagor shall  keep  the  premises  insured  for  the  benefit  of  the 
mortgagee,  and  he  fails  to  do  so,  the  mortgagee  may  insure 
and  charge  the  premium  to  the  estate,  though  in  form  the 
policy  be  for  whom  it  may  concern,  and  payable  to  the  mort- 
gagee.* And  Avhere  the  mortgagee  is  trustee  for  the  mortgagor 
in  respect  to  the  insurance  upon  the  premises,  as  where  the 
mortgagor  effects  the  insurance  payable  to  the  mortgagee,  or 
the  mortgagee  effects  it  at  the  mortgagor's  expense  and  by  his 
consent,  whatever  is  received  by  the  mortgagee  thereon  must 
be  accounted  for  towards  the  mortgage-debt.^  If  a  policy  of 
insurance  be  effected  by  a  mortgagor,  payable  in  case  of  loss 
to  the  mortgagee,  the  mortgagor  cannot  sue  alone  for  the  loss 
unless  he  has  paid  the  mortgage  in  full.  The  action  should  be 
in  the  joint  names  of  mortgagor  and  mortgagee,  or  in  that  of 
the  mortgagee  alone.^ 

§  1158.  Mortgagee  not  bound  to  repair.  —  A  mortgagee  in 
possession  is  not  bound  to  incur  expense  to  repair  or  rebuild 
dilapidated  buildings,  or  those  injured,  without  his  fault,  upon 

1  Maconiber  v.  Cambridge  Ins.  Co.,  8  Cash.  133  ;  Bilson  e.  Manuf.  Ins.  Co., 
IT.  S.  C.  C.  Pa.,  7  Am.  Law  Reg.  661. 

-  Grosveuor  v.  Atlantic  Ins.  Co.,  17  N.  Y.  391. 

3  Foster  v.  Eq.  Ins.  Co.,  2  Gray,  216  ;  Nichols  v.  Baxter,  5  R.  I.  491. 

♦  Fowley  v.  Palmer,  5  Gray,  549.     See  Mix  v.  Hotchkiss,  14  Conn.  32. 

5  King  V.  State  Ins.  Co. ,  7  Gush.  1 ;  Fowley  v.  Palmer,  5  Gray,  549 ;  Andrews, 
Ex  parte,  2  Rose,  410  ;  Larrabee  v.  Lumbert,  32  Me.  97  ;  Graves  v.  Harapd.  Ins. 
Co.,  10  Allen,  382. 

*  Enuis  V.  Harmony  Ins.  Co.,  3  Bosw.  516. 


OF  ACCOUNTING  BY  THE  MORTGAGEE.         213 

the  premises.'  But  he  may,  if  he  see  fit,  rebuild  iii  place  of 
old  ones  gone  to  decay,  for  similar  uses  and  purposes,  and 
charge  the  expense  to  the  estate  in  rendering  his  account.^ 
And  it  is  generally  true,  that  the  mortgagee,  if  in  possession, 
is  bound  to  keep  the  premises  in  proper  repair.^ 

§  1159.  His  Right  to  charge  for  Services.  —  In  respect  to  a 
mortgagee's  charging  for  personal  services  in  taking  care  of 
the  estate,  collecting  the  rents,  etc.,  while  in  possession,  it  is 
held  in  England  that  he  may  not  do  it  in  any  case  except  where 
it  is  necessary  to  employ  a  bailiff  to  do  the  business.*  And  the 
same  rule  is  adopted  in  New  York  and  Kentucky,^  while  in 
Massachusetts  he  may  charge  a  commission  (in  one  case  five 
per  cent  was  allowed)  upon  the  amount  of  the  rents  he  may 
collect  of  others.^  He  cannot,  if  he  occupy  the  premises  him- 
self, charge  any  commission  for  his  care  and  trouble.'  A  sim- 
ilar rule  as  to  allowing  a  mortgagee  to  charge  for  collecting 
rents  applies  in  Connecticut,  Virginia,  and  Pennsylvania,  and 
probably  in  other  States.^ 

§  1160.  When  Mortgagee  accountable  for  Interest.  —  In  addi- 
tion to  the  sums  for  which  a  mortgagee  may  be  chargeable,  as 
above  explained,  courts  sometimes  charge  him  with  interest 
upon  the  money  he  may  receive,  and  in  special  cases  even 
make  annual  rests  in  stating  his  account.  The  case  of  his 
receiving  rents  after  his  debt  has  been  satisfied,  and   being 

1  Campbell  v.  Macomb,  4  Johns.  Ch.  .534  ;  Dexter  v.  Arnold,  2  Sumn.  108, 
125  ;  Gordon  v.  Lewis,  id.  143  ;  Russel  v.  Smithies,  1  Anst.  96  ;  Rowe  v.  Wood, 
2  Jac.  &  W.  553  ;  McCumber  v.  Gilman,  15  111.  381. 

2  Marshall  v.  Cave,  reported  Powell,  Mortg.  957  a  ;  Fisher,  Mortg.  498. 

8  Shaeffer  v.  Chambers,  6  N.  J.  Ei^.  548  ;  Coote,  Mortg.  353  ;  Godfrey  v.- 
Watson,  3  Atk.  517. 

*  Godfrey  v.  Watson,  3  Atk.  517  ;  Bonithon  v.  Hockmore,  1  Vern.  316  ;  Gilbert 
V.  Dyneley,  3  Mann,  &  G.  12  ;  Chambers  v.  Gold  win,  5  Ves.  834  ;  Langstaffe  v. 
Fenwick,  10  Ves.  405  ;  Fisher,  Mortg.  499. 

6  Breckenridge  v.  Brooks,  2  A.  K.  Marsh.  335;  Moore  v.  Cable,  1  Johns.  Ch.  385. 

6  Gibson  v.  Crehore,  5  Pick.  146,  161  ;  Tucker  v.  Buffum,  16  Pick.  46.  Though 
five  per  cent  is  not  a  fixed  rate,  Adams  v.  Brown,  7  Gush.  220  ;  and  more  was  allowed 
in  Bost.  &  W.  R.  R.  v.  Haven,  8  Allen,  359,  361.  That  percentage  was  allowed 
for  moneys  collected,  but  not  upon  moneys  paid  out,  in  Gerrish  v.  Pjlack,  104  Mass. 
400 ;  or  rents  charged,  iu  Montague  v.  B.  k  A.  R.  R.,  124  Mass.  242. 

7  Eaton  V.  Simonds,  14  Pick.  98. 

8  Waterman  v.  Curtis,  26  Conn.  241  ;  Granberry  t;.  Cranberry,  1  Wash.  (Va., 
246  ;  Wilson  v.  Wilson,  3  Binn.  557. 


214  MORTGAGES. 

charged  interest,  has  already  been  stated  ;  ^  and  ordinarily,  in 
stating  the  account,  the  aggregate  of  debt  and  interest  thereon 
will  be  deducted  from  the  aggregate  of  the  rents  received,  with- 
out allowing  annual  rests.^  And  such  is  the  rule  in  Kentucky  ;  ^ 
while  in  Massachusetts,  if  the  amount  of  the  rents  be  consid- 
erable, and  the  interest  on  the  debt  is  in  terms  payable  semi- 
annually, the  court  will  make  even  semi-annual  rests  in  making 
up  the  amount.*  The  general  rule  is,  that  compound  interest 
is  not  allowed;^  though,  if  the  mortgagor  has  allowed  it,  he 
cannot  revoke  its  allowance.^ 

§  1161.  Application  of  Rents.  —  Where  the  mortgagee  holds 
the  premises  by  virtue  of  several  mortgages,  the  law  comes  in 
and  applies  the  rents  he  may  receive  while  in  possession,  in  the 
order  of  their  priority ;  nor  can  he  at  his  election  apply  them 
upon  a  junior  mortgage  while  holding  a  prior  one." 

§  1162.  Application  of  Rents,  continued.  —  If  the  mortgagee 
in  possession  shall  have  made  repairs  upon  the  premises,  and 
received  rents,  in  making  up  his  account  he  has  a  right  to  ap- 
ply these  rents,  first  to  satisfy  the  expenses  incurred  for  such 
repairs,  and  also  towards  the  taxes  paid  by  him.  If  there  is 
any  balance  of  rent  then  remaining,  it  is  to  be  applied  towards 
the  accruing  interest  upon  the  mortgage-debt.  No  part  of  the 
rents  will  be  applied  to  the  principal  unless  they  exceed  the 
charges  for  repairs,  taxes,  and  interest,  as  above  stated.  If  in 
any  year  the  rents  exceed  the  interest  and  charges,  there  will 
be  a  rest  made  at  the  end  of  the  year,  as  the  principal  will 
thereby  be  diminished,  and  interest  be  computed  afterwards  on 
the  balance.^  But  rests  will  not  ordinarily  be  allowed  to  be 
made  when  the  effect  will  be  to  give  interest  upon  any  part  of 

1  Powell,  Mortg.  959,  n.  ;  Gordon  v.  Lewis,  2  Sumn.  143  ;  Hogan  v.  Stone,  1  Ala. 
496. 

2  Powell,  Mortg.  958  a,  n. 

3  Breckenridge  v.  Brooks,  2  A.  K.  Marsh.  335,  where  he  manages  the  estate 
himself. 

*  Gibson  v.  Crehore,  5  Pick.  146. 

5  Dunshee  v.  Parmelee,  19  Vt.  172  ;  Kittredge  v.  McLaughlin,  38  Me.   513. 

s  Booker  v.  Gregory,  7  B.  Mon.  439. 

T  Saunders  v.  Frost,  5  Pick.  259. 

8  Shaeffer  v.  Chambers,  6  N.  .J.  Eq.  548  ;  Reed  v.  Reed,  10  Pick.  398;  Gibson 
V.  Prehore,  5  Pick.  146;  Saunders  v.  Frost,  5  Pick.  259;  Coote,  Mortg.  555; 
Wilson  i;.  Cluer,  3  Beav.  136  ;  Story,  E^i.  Jur.  §  1016. 


OF   ACCOUNTING   BY  THE   MORTGAGEE.  215 

the  prior  interest,^  even  in  favor  of  a  purchaser  of  a  mort- 
gage who  had  paid  the  full  amount  of  the  mortgage-debt  and 
interest,  computed  to  the  day  of  his  purchase.^ 

§  1163.  Application  of  Rents,  continued.- — A  mortgagee  in 
possession  receiving  rents  must  apply  them  to  the  mortgage- 
debt,  and  may  not  apply  them  to  other  claims,^  even  though 
the  mortgagor  agreed  with  the  mortgagee  when  he  took  pos- 
session that  he  might  apply  them  towards  another  claim  on  the 
same  land,  the  mortgagor  having  become  insolvent  before  any 
rents  had  fallen  due  after  possession  taken.^  But  a  mortgagee 
is  not  bound  to  pay  over  any  part  of  the  rents  or  profits  of 
the  estate,  so  long  as  any  part  of  his  mortgage-debt  remains 
unpaid.^ 

1  Finch  V.  Brown,  3  Beav.  70  ;  Blackburn  v.  Warwick,  2  Yoimge  &  C.  92  ; 
Horlock  V.  Smith,  1  Coll.  287. 

2  Bost.  Iron  Co.  i;.  King,  2  Cush.  400. 

3  Wood  V.  Felton,  9  Pick.  171  ;  Harrison  v.  Wyse,  24  Conn.  1. 
^  Hilliard  v.  Allen,  4  Cush.  532,  537. 

6  Bell  V.  The  Mayor,  10  Paige,  49. 


216  MORTGAGES. 


CHAPTER  LI. 

MORTGAGES  —  OF   FORECLOSURE. 

§1164.  When  applied. 

1165.  How  applied. 

1166.  Effect  of  foreclosure, 

1167.  Kedemption  after  foreclosure. 

1168.  Mortgagor's  liability  for  deficiency. 

1169.  How  barred  or  waived. 

1170.  Foreclosure  by  entry  in  Massachusetts  and  Maine. 

1171.  Effect  of  foreclosure  by  entry. 

1172.  Mortgagee's  rights  of  action. 

1173.  Right  to  pursue  concurrent  remedies. 

1174.  Unsatisfied  balance  after  foreclosure. 

1175.  Position  of  mortgagor's  lessee  upon  foreclosure. 

1176.  Parties  to  foreclosure  proceedings. 

1177.  Conclusiveness  of  the  judgment. 

1178.  Foreclosure  after  mortgagee's  death. 
1179^  Trying  adverse  title  —  Multifariousness. 

1180.  Decrees  against  infants. 

1181.  Decrees  against  married  women. 

1182.  Right  of  surety  mortgagee  to  foreclose. 

1183.  Effect  of  foreclosure  upon  the  estate. 

1184.  Effect  of  foreclosure  upon  the  debt. 

§  1164.  "When  applied.  —  There  is,  in  respect  to  all  mort- 
gages, a  process  by  which  all  further  right  to  redeem  is  de- 
feated and  lost  to  the  mortgagor,  and  the  estate  becomes  the 
absolute  property  of  the  mortgagee  or  of  a  purchaser ;  and  this 
is  called  a  foreclosure.  Like  the  right  of  redemption  by  the 
mortgagor,  the  right  of  process  of  foreclosure  by  the  mortgagee 
may  be  barred  and  lost  by  limitation  from  the  lapse  of  time. 
Thus,  if  the  mortgagor  has  been  suffered  to  occupy  the  mort- 
gaged premises  for  more  than  twenty  years  after  the  debt  is 
due  and  payable,  without  any  entry  or  claim  by  the  mortgagee, 
it  will  bar  the  claim  of  the  latter,  on  the  presumption  that  he 
has  been  paid.^    So  the  mortgagee's  right  to  foreclose  his  mort- 

1  Howland  v.  Shurtleff,  2  Met.  26;  ante,  §  1118. 


OF   FORECLOSURE.  217 

gage  may  be  defeated  by  a  tender  of  the  debt  by  the  mort- 
gagor in  time  to  save  a  forfeiture.  Where  that  is  done,  the 
mortgage  is  extinguished  ;  and  if  the  mortgagee  after  that 
brings  process  of  foreclosure,  the  mortgagor  may  avail  him- 
self of  such  tender  in  bar  without  the  necessity  of  bringing 
the  money  into  court.^ 

§  1165.  How  applied.  —  There  are  various  modes  of  effect- 
ing a  foreclosure  in  the  different  States.^  And  an  agreement 
in  the  mortgage  itself  that  it  should  be  foreclosed  in  any  other 
way  than  that  prescribed  by  law  would  be  void.^  The  process 
of  foreclosure  must  conform  to  the  law  of  the  State  in  which 
the  land  is  situate,  in  order  to  be  of  any  validity  or  effect.*  In 
England,  one  mode  is  by  a  bill  in  equity  praying  for  a  fore- 
closure, upon  which  the  court,  through  a  master,  ascertains  in 
the  manner  above  described  the  amount  which  is  due  upon  the 
mortgage,  and  then  by  decree,  that  unless  the  one  having  the 
equity  of  redemption  shall  within  a  prescribed  term,  usually 
six  months,  pay  that  sum  and  redeem  the  estate,  he  shall  be  for 
ever  barred  from  redeeming.^  This  is  called  a  strict  foreclosure. 
But  by  a  recent  statute,^  the  court  may  always  direct  a  sale  of 
the  property  at  the  request  of  either  party,  instead  of  decreeing 
a  strict  foreclosure.'^  The  usual  mode  of  foreclosure  in  Illinois 
is  by  having  the  estate  sold,  giving  the  mortgagee  a  certain 
time  in  which  to  redeem  from  the  sale.  But  it  is  competent 
for  the  court,  if  the  property  is  an  inadequate  security  for 
the  debt,  to  apply  the  doctrine  of  strict  foreclosure,  making 
the  sale  absolute  if  the  mortgagor  fails  to  redeem  within  a  pre- 

1  Van  Husan  v.  Kanouse,  13  Mich.  303. 

2  For  a  full  presentation  of  the  several  modes  of  foreclosure,  viz.  entry,  writ  of 
entry,  scire  facias,  strict  foreclosure,  suit  in  equity,  etc.,  with  all  their  details  in 
regard  to  parties  and  procedure,  space  would  be  required  disproportionate  to  the 
limits  of  this  work.  As  these  have  been  fully  and  satisfactorily  discussed  by  Mr. 
Jones,  in  his  able  and  comprehensive  Treatise  on  Mortgages,  §§  1255-1721,  the 
reader  is  referred  to  that  work  for  their  further  examination.  Cf.  Lord  v.  Crowell, 
75  Me.  399. 

8  Chase  v.  McLellan,  49  Me.  375. 

<  Elliot  V.  Wood,  45  N.  Y.  71. 

6  Daniell,  Ch.  Pract.  1204  ;  Coote,  Mortg.  511. 

«  15  &  16  Vict.  c.  86,  §  48. 

'  Wms.  Real  Prop.  356.  The  reader  will  find  a  statement  of  the  respective 
advantages  of  the  one  form  or  the  other  of  defeating  the  right  of  redemption  in 
Lansing  v.  Goelet,  9  Cow.  346,  382,  by  Chancellor  Joues. 


218  MORTGAGES. 

scribed  time.^  In  Michigan,  if  one  holds  several  mortgages  to 
secure  the  same  debt,  he  may  foreclose  them  in  succession  till 
his  debt  is  satisfied.^  It  seems  to  be  essential  to  the  validity 
of  a  decree  for  strict  foreclosure,  that  it  should  give  the  mort- 
gagor a  certain  time  within  which,  after  tlie  decree,  he  may  re- 
deem the  premises.  And  this  doctrine  is  applied  in  Kansas,  unless 
there  be  a  suit  by  the  mortgagee  against  the  mortgagor  to  ascer- 
tain the  amount  due ;  and  the  court  render  a  special  order  that 
the  premises  shall  be  sold  w^on  fieri  facias ,  as  may  be  done.^ 

§  1166.  Effect  of  Foreclosure.  —  In  a  strict  foreclosure  the 
mortgagee  takes  the  whole  estate,  the  effect  of  such  a  proceed- 
ing being  merely  to  extinguish  the  right  of  redemption.*  So 
where,  instead  of  a  strict  foreclosure,  the  estate  is  sold  to  the 
highest  bidder  by  a  master,  as  may  be  done  in  New  York,  the 
effect  is  the  same  in  cutting  off  and  extinguishing  the  equity 
of  redemption,  and  leaves  the  title  conveyed  by  the  mortgage 
absolute.^  But  it  seems  that  a  strict  foreclosure  may  be  re- 
sorted to  in  New  York  ;  but  it  is  not  favored  by  the  courts, 
being  regarded  as  a  severe  remedy.^  But  the  owner  of  the 
equity  has  a  right  to  the  rents  until  the  purchaser  under  the 
decree  is  entitled  to  possession  of  the  premises  under  a  deed 
duly  delivered.''"  When  the  mortgage  is  foreclosed  by  sale 
under  a  decree  of  the  court,  the  mortgagor's  title  passes  to  the 
purchaser,  upon  the  consummation  of  the  sale  by  the  master's 
or  sheriff's  deed,  and  the  court  of  equity  under  whose  decree 
the  sale  was  made  will  enforce  it  by  giving  the  purchaser 
possession.^  So  where  the  mortgage  is  foreclosed,  as  in  Penn- 
sylvania, by  a  sheriff's  sale,  the  title  of  the  purchaser  relates 
back  to  the  date  of  the  mortgage.^    Foreclosure  in  Pennsylvania 

1  Farrell  v.  Parlier,  50  111.  274,  276  ;  Sheldon  v.  Patterson,  55  111.  507. 

2  McKinney  v.  Miller,  19  Mich.  142,  152. 

3  Clark  V.  Reyburn,  8  Wall.  318,  32-3. 

4  Brainard  v.  Cooper,  10  N.  Y.  356  ;  Bradley  v.  Chest.  Vail.  R.  E.,  36  Penn. 
St.  141. 

5  Packer  v.  Roch.  R.  R.,  17  N.  Y.  283  ;  Lewis  v.  Smith,  9  X.  Y.  502,  515.  So 
in  Iowa.     Kramer  v.  Rebman,  9  Iowa,  114  ;  Shricker  v.  Field,  id.  366. 

6  Belles  V.  Duff,  43  N.  Y.  469,  474. 

7  Clason  V.  Corley,  5  Sandf.  447  ;  Whalin  v.  White,  25  N.  Y.  462. 

«  Montgomery  v.  Tutt,  11  Cal.  190  ;  Kershaw  v.  Thompson,  4  Johns.  Ch.  609. 
9  De  Haven  v.  Landell,  31  Penn.  St.  120.     See  also  Shores  v.  Scott  Riv.  Co., 
21  Cal.  135,  139  ;  Kenyon  v.  Schreck,  52  111.  382. 


OF  FORECLOSURE.  219 

and  Illinois  is  effected  by  a  process  of  scire  facias,  and  a 
judgment  and  sale  of  the  estate  thereon,  which  passes  an 
unincumbered  title  to  the  purchaser.^  And  in  New  York,  the 
mortgagor's  right  of  redemption  is  foreclosed  by  the  sale  by 
the  master,  and  is  not  suspended  till  the  deed  is  actually 
delivered,  nor  is  a  deed  essential  to  such  foreclosure.^  And  in 
a  like  case  and  proceedings  in  Wisconsin,  the  sale  made  under 
the  decree  of  court  passes  the  entire  interest  of  the  mort- 
gagor and  mortgagee.^  If  the  mortgage  is  foreclosed,  the 
estate  which  was  conditional  and  defeasible  in  its  creation 
becomes  absolute,  and  the  incidents,  privileges,  and  covenants 
attached  to  it,  unchanged  by  anything  which  the  mortgagor 
or  any  other  person  may  have  done  in  the  mean  time,  remain 
attached  to  it  as  if  the  original  conveyance  had  been  absolute.* 
But  a  sale  upon  a  junior  mortgage  cannot  affect  the  rights 
of  a  prior  mortgagee.  It  can  only  be  subordinate  to  any  prior 
and  paramount  security.^  By  a  strict  foreclosure,  the  mortga- 
gee acquires  no  new  estate  or  rights.  It  merely  cuts  off  the 
right  of  the  mortgagor  to  the  estate,  and  interposes  a  perpetual 
bar  against  the  party  foreclosed.  He  would  not  therefore 
acquire  a  right  of  the  mortgagor  to  redeem  from  a  second 
mortgage.  His  rights,  in  this  respect,  would  differ  from  what 
they  would  be  upon  a  judicial  sale,  or  an  express  grant  from 
the  mortgagor.^  So  where  the  foreclosure  is  by  sale  of  the 
premises,  as  in  New  York,  and  the  mortgage  embraces  a  large 
tract  of  land  on  which  the  mortgagor,  after  making  such  mort- 
gage, laid  out  a  village  into  house-lots,  with  streets,  etc.,  and 
sold  the  same  to  sundry  individuals,  the  mortgagee,  in  seeking 
to  foreclose  them,  would  not  be  obliged  to  have  the  premises 
sold  in  parcels  as  laid  out,  or  to  abandon  his  rights  as  mort- 
gagee to  the  land  covered  by  the  streets,  etc.^     But  where  the 

1  Hinds  V.  Allen,  34  Conn.  185,  193  ;  Hosie  v.  Gray,  71  Penu.  St.  198  ;  Jones, 
Mortg.  §  1355;  Osgood  i;.  Stevens,  25  111.  89.  And  want  of  consideration  cannot 
be  shown.  Fitzgerald  v.  Forristal,  48  111.  228.  The  proceeding  is  strictly  at  law. 
Tucker  v.  Conwell,  67  111.  552. 

2  Tuthill  V.  Tracy,  31  N.  Y.  157,  162  ;  Brown  v.  Frost,  10  Paige,  243. 
e  Tallman  v.  Ely,  6  Wis.  244  ;  Hodson  v.  Treat,  7  Wis.  263,  278. 

*  Ritger  v.  Parker,  8  Cush.  145.     See  Burton  v.  Lies,  21  Cal.  91. 

5  Galveston  R.  R.  y.Cowdrey,  11  Wall.  459,  476;  Walcott  v.  Spencer,  14  Mass.  409. 

6  Goodman  v.  White,  26  Conn.  317. 
T  Griswold  v.  Fowler,  24  Barb.  135. 


220  MORTGAGES. 

mortgage  covered  a  large  and  valuable  estate,  and,  upon  mak- 
ing sale  of  it  to  foreclose  it,  a  junior  mortgagee  requested  the 
prior  mortgagee  to  sell  only  so  much  of  the  estate  as  was 
sufficient  to  satisfy  his  claim,  and  offered  to  bid  and  pay  for  a 
part  thereof  indicated,  enough  to  satisfy  the  first  mortgage,  but 
this  was  declined,  and  the  whole  estate  was  sold,  it  was  held  to 
be  irregular  and  invalid.^  If  the  decree  be  for  a  strict  fore- 
closure, the  mortgagee,  being  out  of  possession,  is  obliged  to 
resort  to  an  action  of  ejectment  to  recover  possession  ;  whereas, 
if  it  be  by  sale  under  a  judicial  decree,  the  court  may  compel 
the  mortgagor  to  surrender  possession.^  But  in  what  has 
been  said,  it  has  been  assumed  that  the  decree  by  which  the 
foreclosure  is  effected  has  been  rendered  after  due  notice  to 
subsequent  mortgagees,  or  their  assigns,  whose  mortgages  or 
assignments  have  been  recorded,  since,  unless  so  notified,  such 
foreclosure  does  not  bind  them  or  affect  their  rights  unless 
made  parties  to  the  proceedings.^ 

§  1167.  Redemption  after  Foreclosure.  —  Sometimes,  in  Eng- 
land, this  foreclosure  is  opened,  and  the  time  of  redemption 
enlarged,  under  the  general  discretion  which  the  court  there 
exercises ;  and  this  has  been  done  after  the  expiration  of  six- 
teen years  from  the  time  of  the  decree.*  And  it  is  lield,  that 
the  effect  of  certain  acts  of  a  mortgagee  who  has  obtained  a 
strict  foreclosure  will  open  it,  and  let  in  the  mortgagor  to  re- 
deem. As,  for  instance,  if  the  mortgagee,  on  the  ground  that 
the  estate  is  of  less  value  than  the  amount  of  his  debt,  sues 
the  mortgagor  to  recover  the  balance  alleged  to  be  due,  he 
opens  the  redemption  in  England  and  in  most  of  the  States.° 
But  this  does  not  apply  to  cases  where  the  estate  has  been 
sold  by  way  of  foreclosure,^  nor  to  cases  of  debts  payable  in 

1  Ellsworth  I'.  Lockwood,  42  N.  Y.  89,  96. 

-  Schenck  v.  Conover,  13  N.  J.  Eq.  220  ;  Kershaw  v.  Thompson,  4  Johns.  Ch. 
609;  Montgomery  v.  Middlemiss,  21  Cal.  103. 

8  Winslow  V.  McCall,  32  Barb.  241  ;  Packer  v.  Eoch.  R.  R.,  17  N.  Y.  285  ; 
Friiik  V.  Murphy,  21  Cal.  108. 

*  Daniell,  Ch.  Pract.  1205;  Coote,  Mortg.  515.  As  to  when  the  debt  is  pre- 
sumed to  be  satisfied,  see  Barnard  v.  Onderdonk,  98  N.  Y.  158. 

6  Lockhart  v.  Hardy,  9  Beav.  319  ;  Coote,  Mortg.  516  ;  Mass.  Pub.  Stat.  c.  181, 
§  42  ;  Morse  v.  Merritt,  110  Mass.  458,  460  ;  Den  v.  Tunis,  25  N.  J.  633  ;  Andrews 
V.  Scotton,  2  Bland,  629,  666  ;  Powell,  Mortg.  1003. 

8  Dunkley  v.  Van  Buren,  3  Johns.  Ch.  330;  Andrews  v.  Scotton,2  Bland,  629, 


OP   FORECLOSURE.  221 

instalments,  where  there  has  been  a  foreclosure  for  the  non- 
j)ayment  of  one  of  those,  and  a  subsequent  suit  is  brought  to 
recover  a  second  instahnent.^ 

§  1168.  Mortgagor's  Liability  for  Deficiency.  —  Independent  of 
its  effect  upon  the  opening  of  a  foreclosure,  it  seems  to  be  a 
right  wliich  a  mortgagee  may,  in  all  cases,  exercise,  to  sue  the 
mortgagor  upon  the  original  mortgage-debt,  and  recover  the 
difference  between  the  value  of  the  foreclosed  mortgaged  prop- 
erty and  the  amount  of  the  debt,  treating  the  foreclosure  as  a 
payment  pro  tanto.^  But  the  mortgagor  will  be  allowed  to 
show  that  he  was  fraudulently  induced  to  give  a  mortgage  for 
an  amount  in  excess  of  what  was  due,  and  the  excess  will  be 
deducted  from  the  amount  necessary  to  redeem.^ 

§  1169.  How  barred  or  waived.  —  If  the  mortgagee  acknowl- 
edges a  satisfaction  of  the  debt  upon  the  back  of  the  mortgage- 
deed  before  the  same  is  foreclosed,  it  operates  as  a  discharge  of 
it.  And  in  some  cases  the  receipt  by  a  mortgagee  of  a  part  of 
the  mortgage-debt  in  the  way  of  payment,  after  a  foreclosure, 
is  held  to  be  a  waiver  of  such  foreclosure.'*  Where  a  purchaser 
at  a  foreclosure  sale  agrees  with  the  mortgagor  to  extend  the 
time  of  redemption  from  such  sale  beyond  the  time  fixed  by 
statute,  he  will  be  held  to  stand  as  mortgagee  of  the  estate, 
and  the  same  may  be  redeemed  accordingly.^  And  a  tender 
may  have  that  effect  when  made  under  an  agreement  on  the 
part  of  the  mortgagee,  that,  if  the  debt  is  paid  by  a  certain 
time,  no  advantage  shall  be  taken  of  the  foreclosure.^  And 
the  acceptance  of  the  full  amount  of  the  mortgage-debt  is  con- 
clusive  evidence  of   the  waiver  of   a  prior   foreclosure.'^     So 

1  Wilson  V.  Wilson,  4  Iowa,  309. 

2  Globe  Ins.  Co.  v.  Lansing,  5  Cow.  380;  Hatch  v.  White,  2  Gallis.  152; 
Powell,  Mortg.  1002;  Amory  v.  Fairbanks,  3  Mass.  562;  West  v.  Chamberlin, 
8  Pick.  336;  Leland  v.  Loring,  10  Met.  122;  Souther  v.  Wilson,  29  Me.  56; 
Langdon  v.  Paul,  20  Vt.  217  ;  Hunt  v.  Stiles,  10  N.  H.  466  ;  Smith  v.  Packard, 
19  N.  H.  575  ;  Dunkley  v.  Van  Buren,  3  Johns.  Cli.  330  ;  Lansing  v.  Goelet,  9  Cow. 
346  ;  Porter  v.  Pillshury,  36  Me.  278  ;  Paris  v.  Hulett,  26  Vt.  308 ;  Patten  v. 
Pearson,  57   Me.  428,   434. 

3  Twitchell  v.  Bridge,  42  Vt.  68. 

*  Lawrence  v.  Fletcher,  10  Met.  344  ;  Deming  v.  Comings,  11  N.  H.  474. 
s  Pensoneau  ».  Pulliam,  47  111.  58. 

6  McNeill  V.  Call,  19  N.  H.  403. 

7  Batchelder  v.  P»obinson,  6  N.  H.  12. 


222  MORTGAGES. 

where,  as  in  Massachusetts,  the  mortgagee  may  enter  in  pais, 
or  under  a  judgment  of  court,  and  hold  possession  a  certain 
length  of  time,  and  thereby  foreclose  the  mortgage,  if,  after 
having  entered  and  held  possession  for  the  purpose  of  fore- 
closure, he  brings  liis  action  at  law  to  recover  possession,  he 
waives  the  effect  of  his  prior  entry.^ 

§  1170.  In  Massachusetts  and  Maine,  the  Remedy  of  the  Mort- 
gagee to  foreclose  his  Mortgage  is  by  an  Entry  in  pais,  or  by  a 
suit  by  a  writ  of  entry,  in  which  he  recovers  a  judgment  for 
possession  of  the  mortgaged  premises,  if,  within  a  certain  pre- 
scribed time,  the  debt  is  not  paid.^  A  writ  of  habere  facias 
thereupon  issues,  and  the  mortgagee  is  put  into  possession, 
which  possession,  gained  in  either  way,  if  continued  a  certain 
prescribed  period  of  time,  three  years,  works  a  foreclosure. 
But  making  and  recording  an  entry  for  a  breach  of  condition, 
and  a  lapse  of  three  years,  does  not  estop  the  mortgagor  from 
sliowing  that  the  condition  had  not  been  broken  when  the 
entry  was  made.^  A  mortgagee  may,  however,  sue  a  writ  of 
entry  for  possession  at  common  law,  and  recover  judgment 
accordingly,  if  neither  party  set  up  the  mortgage.*  But  until 
he  shall  have  made  an  entry  under  his  mortgage  in  some  form, 
he  cannot  give  authority  to  a  stranger  to  occupy  the  premises 
so  as  to  protect  him  against  the  claim  of  the  owner  of  the 
equity  to  possession.^  If  a  mortgagor  certifies  to  an  entry 
made  by  the  mortgagee  for  condition  broken  in  form  required 
by  law,  and  this  is  recorded,  it  is  notice  to  all  concerned ;  and 
whoever  purchases  the  equity  of  redemption  would  be  bound 
by  it,  and  would  not  be  at  liberty  to  controvert  it  on  the  ground 

1  Fay  V.  Valentine,  5  Pick.  418  ;  Smith  v.  Kelley,  27  Me.  237.  But  see  Fletcher 
V.  Gary,  103  Mass.  475,  480  ;  Learned  v.  Foster,  117  Mass.  36.5,  371,  where  Fay  v. 
Valentine  is  distinguished,  and  there  is  held  to  be  no  waiver  of  an  entry  by  a  suit 
against  a  tenant,  or  of  a  sale  under  a  power  by  a  subsequent  entry. 

2  Holbrook  v.  Bliss,  9  Allen,  69,  where  this  is  held  to  be  in  effect  an  equitable 
action. 

3  Pettee  v.  Case,  11  Gray,  478. 

*  Treat  v.  Pierce,  53  Me.  71 ;  Stewart  v.  Davis,  63  Me.  539  ;  Lawrence  v.  Stratton, 
6  Gush.  163. 

6  Silloway  i;.  Brown,  12  Allen,  30;  Mayo  v.  Fletcher,  14  Pick.  525.  Nor  can 
he  or  the  foreclosure  purchaser  have  forcible  entry  and  detainer  before  entry.  Boyle 
V.  Boyle,  121  Mass.  85  ;  Walker  v.  Thayer,  113  Mass.  36;  Woodside  v.  Kidgeway, 
126  Mass.  292.     But  see  now  Pub.  Stat.  1881,  c.  175,  §  1. 


OF  FORECLOSURE.  22'S 

of  fraud.^  This  right  of  foreclosing  by  an  entry  made  by  the 
mortgagee  does  not  extend  to  one  whose  husband  or  wife  is 
the  mortgagor.2  It  may  be  effectual  if  made  in  the  presence 
of  witnesses,  although  the  certificate  of  the  fact  omits  to  state 
that  it  was  done  in  an  open  and  peaceable  manner.^  In  New- 
Hampshire,  if  the  mortgage  embrace  several  parcels  of  wild 
land,  an  entry  upon  one  in  the  name  of  the  whole  would  be 
sufficient  to  gain  a  seisin  of  them  all.^  And  the  same  rule  is 
adopted  in  Massachusetts.  If  a  mortgage  covers  two  parcels 
of  land,  an  entry  on  one  is  sufficient.^  An  entry  to  foreclose 
in  Massachusetts  is  held  to  be  peaceable,  if  not  opposed  by 
any  one  claiming  the  land ;  and  open,  if  made  in  the  presence 
of  two  competent  witnesses,  whose  certificates  are  sworn  to 
and  recorded  within  thirty  days  in  the  county  registry.  If 
the  witness  sign  the  certificate  by  his  mark,  it  will  be  suffi- 
cient.^ This  has  given  rise  to  sundry  questions  growing  out 
of  successive  mortgages,  where  a  later  mortgagee  has  sought 
to  foreclose  against  the  mortgagor  or  an  incumbrance  subse- 
quent to  his  own.  Thus,  if  a  second  mortgagee  enter  to 
foreclose  his  mortgage,  it  will  operate  to  that  effect  as  to  sub- 
sequent mortgages,  although,  at  the  time  of  making  such 
entry,  the  first  mortgagee  is  in  actual  possession  of  the  prem- 
ises.^ Nor  does  an  entry  by  a  mortgagee  in  Massachusetts  to 
foreclose  his  mortgage  break  the  continuity  of  the  tenant's 
possession,  unless  he  actually  take  possession  of  the  premises 
under  his  mortgage.^  To  foreclose  by  taking  possession  in 
Massachusetts  docs  not  require  that  the  mortgagor  should  be 
ousted  or  expelled.^  And  after  a  mortgagee  has  made  an 
entry  upon  the  premises  to  foreclose  the  same,  he  may  bring 
and  maintain  a  writ  of  entry  against  the  mortgagor.^*^     On  the 

1  Taylor  v.  Dean,  7  Allen,  251. 

2  Tucker  v.  Fenno,  110  Mass.  311  ;  Cormeraisw.  Wesselhoeft,  114  Mass.  550,  553. 
^  Hawkes  v.  Brigham,  16  Gray,  564. 

*  Green  v.  Pettengill,  47  N".  H.  375. 

6  Hawkes  v.  Brigham,  16  Gray,  561  ;  Bennett  v.  Conant,  10  Gush.  163. 

6  Thompson  v.  Kenyon,  100  Mass.  108. 

^  Palmer  v.  Fovvley,  5  Gray,  545. 

8  Mitchell  V.  Shanley,  12  Gray,  206. 

»  Swift  V.  Mendell,  8  Cash.  357  ;  Fletcher  v.  Carey,  103  Mass.  475 ;  Morse  v. 
Bassett,  132  Mass.  502,  509. 

10  Beavin  v.  Gove,   102  Mass.  298  ;  Merriara  v.   Merriam,  6  Cush.  91  ;  Page  v. 
Robinson,  10  Cush.  99  ;  Devens  v.  Bower,  6  Gray,  126. 


224  MORTGAGES. 

other  hand,  neither  suffering  the  mortgagor  to  retain  pos- 
session of  the  premises  after  possession  taken  to  foreclose, 
nor  the  suing  out  a  writ  of  entry  against  the  tenant,  if  it  do 
not  call  for  a  conditional  judgment,  will  have  the  effect  of  a 
waiver  of  a  previous  entry  by  the  mortgagee  for  the  purpose 
of  foreclosing  the  mortgage.^  So  a  husband  mortgaging  land 
in  which  there  is  a  homestead  right,  passes  a  reversionary 
interest  in  the  land,  and  his  mortgagee  may  sue  to  foreclose 
the  same,  and  make  a  formal  entry  under  the  habere  facias 
for  that  purpose,  without  disturbing  the  enjoyment  by  the 
husband  or  his  wife  and  children  under  their  homestead  right.^ 
So  where  there  was  a  first  and  second  mortgage,  and  then  the 
first  mortgagee  took  a  third  mortgage  and  purchased  in  the 
equity  of  redemption,  being  in  possession  of  the  premises, 
it  was  held  that  the  second  mortgagee  might  have  an  action 
against  tlie  first  to  foreclose  as  to  the  third  mortgage  and  the 
equity  of  redemption ;  and  in  order  to  give  it  full  effect,  the 
demandant,  in  such  suit,  might  be  put  into  temporary  posses- 
sion of  the  premises,  leaving  the  rights  of  the  tenant  as  first 
mortgagee  unaffected  by  the  proceedings.^  A  writ  of  entry  in 
such  case  is  like  a  bill  in  equity  to  foreclose,  where  the  court 
may  make  the  requisite  decree  to  give  effect  to  the  process 
without  affecting  the  defendant's  rights  as  prior  mortgagee.* 

§  1171.  Effect  of  Foreclosure  by  Entry. — A  foreclosure  of  a 
mortgage  by  entry  and  notice  is  so  effectual  in  vesting  the 
mortgagee  with  the  absolute  title  to  the  estate,  that  where, 
after  such  a  foreclosure,  the  mortgagee  agreed  in  writing  to 
release  the  ""  mortgaged  premises  "  to  a  third  party,  who  acted 
by  a  parol  arrangement  with  the  mortgagor,  it  was  held  not  to 
waive  or  open  the  foreclosure.^  And  if,  after  a  first  mortgagee 
enters  to  foreclose,  a  second  mortgagee  commence  a  process 
to  redeem  from  this  prior  mortgage,  and,  while  this  process  is 

1  Fletcher  v.  Carey,  103  Mass.  475  ;  Moore  v.  Bassett,  supra ;  Furnas  v.  Durgin, 
119  Mass.  500. 

2  Doyle  V.  Coburn,  6  Allen,  71. 

3  Cronin  v.  Hazeltine,  3  Allen,  324  ;  Smith  v.  Provin,  4  Allen,  516  ;  Penniman 
V.  Hollis,  13  Mass.  429  ;  Amidown  v.  Peck,  11  Met.  467  ;  George  v.  Baker,  3  Allen, 
326,  note  ;  Kilborn  v.  Rohbins,  8  Allen,  466;  Doten  v.  Hair,  16  Gray,  149  ;  Coch- 
ran V.  Cioodell,  131  Mass.  464. 

4  Doten  V.  Hair,  16  Gray,  149. 

5  Clark  V.  Crosby,  101  Mass.  184. 


OF    FORECLOSURE.  225 

pending,  the  time  of  redemption  from  the  first  mortgage 
elapses,  and  the  holder  thereof  assigns  and  conveys  his  interest 
to  the  second  mortgagee,  who  discontinues  his  proceedings,  he 
will  hold  the  estate  foreclosed  in  the  same  way  as  the  first 
mortgagee  would  have  done.^ 

§  1172.  Mortgagee's  Rights  of  Action.  —  A  mortgagee,  after 
condition  broken,  may  recover  in  one  form  of  action,  although 
there  may  be  some  technical  objection  to  his  recovering  in  the 
other.  The  debt  may  remain,  and  the  mortgage  may  be  en- 
forced, although  an  action  to  recover  the  debt  at  law  is  barred 
by  the  statute  of  limitations.^  And  the  same  rule,  as  to  when 
the  right  of  action  accrues,  applies  to  an  action  upon  the 
mortgage  as  upon  the  debt  thereby  secured.  Thus,  if  it  be  to 
secure  a  note  payable  on  time,  which  is  entitled  to  grace,  the 
condition  of  the  mortgage  is  not  broken  until  the  days  of  grace 
have  expired,  although  no  grace  is  mentioned  in  the  mortgage.^ 
So  the  mortgagor,  in  a  suit  to  foreclose  the  mortgage,  may 
make  any  defence,  except  the  statute  of  limitations,  which  he 
could  make  against  the  recovery  of  the  debt  thereby  secured ; 
as,  for  instance,  want  or  failure  of  consideration,  or  that  it 
was  given  to  defraud  creditors.'*  In  New  Hampshire  and  New 
York,  the  debtor  in  an  action  of  ejectment  or  process  to  enforce 
a  mortgage  may  file  in  set-off  any  claims  which  he  could  do 
in  a  suit  upon  the  debt  itself,  or  he  may  plead  payment  before 
or  after  condition  broken.^  So  in  Ohio,  the  debtor  may  plead 
payment  or  satisfaction  of  the  debt  secured.^  If  a  mortgage 
cover  several  parcels  of  estate,  the  mortgagee  may  foreclose  it 
as  to  one  without  including  the  others ;  and  if  the  value  of  the 
parcel  foreclosed  is  equal  to  tlie  debt  secured,  the  same  will 
thereby  be  paid,  and  the  mortgage  as  to  the  other  parcels  be 
paid  and  satisfied." 

1  Thompson  17.  Kenyon,  100  Mass.  108. 

2  Thayer  v.  Mann,  19  Pick.  535. 

*  Coffin  V.  Loving,  5  Allen,  153. 

*  Vinton  v.  King,  4  Allen,  562  ;  Miller  v.  Marckle,  21  111.  152  ;  Freeland  v.  Free- 
land,  102  Mass.  475  ;  Hannan  v.  Hannan,  123  Mass.  441  ;  Davis  v.  Bean,  114  Mass. 
360.     So  usury.     Minot,  v.  Sawyer,  8  Allen,  78. 

6  Northy  v.  Northy,  45  N.  H.  141  ;  Chapman  v.  Robertson,  6  Paige,  C27. 
8  Raguet  V.  Roll,  7  Ohio,  77. 

">  Green  v.  Cross,  45  N.H.  574  ;  Green  v.  Dixon,  9  Wis.  532 ;  Hosfonl  v.  Nichols, 
1  Paige,  220,  224;  George  v.  Wood,  11  Allen,  41  ;  Pike  v.  Goodnow,  12  Allen,  472. 
VOL.    II.  — 15 


226  MORTGAGES. 

§  1173.  Right  to  pursue  Concurrent  Remedies.  —  Acccptinir  se- 
curity in  the  form  of  a  mortgage  does  not  prevent  the  creditor 
from  pursuing  any  other  remedy  he  may  have  for  the  recovery 
of  his  debt,  as  well  as  that  upon  his  mortgage.^  And  in  respect 
to  the  land  itself,  he  may  proceed  in  law  or  in  equity  for  its 
recovery  at  one  and  the  same  time,  or  successively ,2  and  recover 
his  costs  in  either.^  In  New  York,  however,  no  judgment  will 
be  rendered  or  execution  issued  in  a  suit  upon  the  note  or 
bond,  while  a  foreclosure  suit  is  pending,  without  leave  of 
chancery.*  In  Missouri,  recovery  of  judgment  for  the  amount 
of  the  debt  does  not  preclude  foreclosure  of  the  mortgage.^ 
In  Iowa,  an  action  on  a  note  and  mortgage  for  foreclosure 
is  an  equitable  proceeding,  if  upon  the  note  alone  it  is  an 
ordinary  proceeding  at  law.^ 

§  1174.  [An  Unsatisfied  Balance  after  Foreclosure  may  be  re- 
covered at  law,^  and  generally,  where  foreclosure  is  by  sale,  it 
may  be  recovered  by  a  deficiency  decree  which  is  entered  in  the 
foreclosure  suit,  and  which  has  the  force  of  a  personal  money 
judgment.  Such  is  the  practice  of  the  federal  courts.^]  But 
it  is  competent  for  the  court  in  a  foreclosure  suit  to  appoint  a 
receiver  to  take  and  hold  the  rents  during  the  pendency  of  the 
process.^  And,  as  a  general  proposition,  the  land  foreclosed  is 
taken  at  its  value  towards  or  in  full  payment  of  the  mortgage- 

1  Burnell  v.  Martin,  Dong.  417  ;  Booth  ;;.  Booth,  2  Atk.  343  ;  Coote,  Mortg. 
518 ;  2  Spence,  Eq.  Jur.  636  ;  Young,  Matter  of,  3  Md.  Ch.  Dec.  461  ;  Harrison  v. 
Eldridge,  7  N.  J.  392  ;  Den  v.  Spinning,  6  N.  J.  466  ;  Longworth  v.  Flagg,  10  Ohio, 
300;  Knetzer  V.  Bradstreet,  1  Greene  (Iowa),  382  ;  Morrison  v.  Buckner,  1  Hemjist. 
C.  C.  442;  Downing  i'.  Palmateer,  1  Men.  64 ;  Verj'  v.  Watkins,  18  Ark.  546  ;  Hale 
V.  Rider,  5  Gush.  231 ;  Jones  v.  Conde,  6  Johns.  Ch.  77  ;  Payne  v.  Harrel),  40  Miss. 
498  ;  ante,  §  1044. 

2  Hughes  V.  Edwards,  9  Wheat.  489  ;  Andrews  v.  Scotton,  2  Bland,  629,  665  ; 
M'Call  V.  Lenox,  9  S.  &  R.  302 ;  Slaughter  v.  Foust,  4  Blackf.  379 ;  Delahay  v. 
Clement,  3  Scam.  201. 

3  Very  v.  Watkins,  18  Ark.  546.  The  mortgagor  may  have  injunction,  if  the 
mortgagee  takes  the  mortgaged  premises  on  execution,  to  prevent  sale  of  his  other 
lands  till  the  court  ascertains  what  amount  is  still  due  on  the  mortgage.  Lydecker 
V.  Bogert,  38  N.  J.  Eq.  136. 

*  Williamson  v.  Champlin,  8  Paige,  70  ;  Suydam  v.  Bartle,  9  Paige,  294. 

fi  Thornton  v.  Pigg,  24  Mo.  249. 

6  Christy  v.  Dyer,  14  Iowa,  438,  443. 

■^  Stark  V.  Mercer,  3  How.  (Miss.)  377. 

8  Equity  Rule  92. 

»  Finch  V.  Houghton,  19  Wis.  149,  158. 


OF   FORECLOSURE.  227 

debt,  as  the  case  may  be.^  If  of  less  value  than  the  debt 
secured,  the  balance  may  be  recovered  in  an  action  of  assumpsit 
against  the  maker  or  indorser  of  the  note,  if  that  be  the  form 
of  the  debt.'-^  The  same  would  be  the  effect  if  the  interest  of 
the  mortgagor  and  mortgagee  came  together  in  one  person  so 
as  to  merge ;  its  effect  would  be  like  a  foreclosure,  and  the 
holder  of  the  mortgage  securities  can  recover  the  difference 
between  the  value  of  the  mortgaged  estate  and  the  dcbt.^  In 
New  York,  after  a  bill  has  been  filed  for  the  satisfaction  of 
a  mortgage,  while  the  same  is  pending,  and  after  a  decree 
rendered  thereon,  no  proceedings  whatever  shall  be  had  at  law 
for  the  recovery  of  the  debt  secured  by  the  mortgage,  or  any 
part  thereof,  unless  authorized  by  the  court  of  chancery.^  And 
a  judgment  in  a  foreclosure  suit  contains  a  clause  docketing 
the  judgment  against  the  mortgagor  for  any  deficiency  which 
may  remain  unsatisfied  of  the  mortgage-debt,  after  applying  the 
proceeds  of  the  sale.^ 

§  1175.  Position  of  Mortgagor's  Lessee  upon  Foreclosure.  — 
The  purchaser  in  a  foreclosure  sale  cannot  claim  the  interven- 
ing rent  which  accrues  between  the  sale  and  the  delivery  of 
tlie  foreclosure  deed.  His  riglit  is  only  consummated  upon 
the  delivery  of  such  deed,  and  does  not  relate  back.^  If  there 
is  any  surplus  of  the  money  bid  for  the  premises  upon  a  fore- 
closure sale  after  satisfying  the  mortgage,  and  there  be  a  lessee 
of  the  mortgaged  premises  under  a  lease  with  covenants  for 
quiet  enjoyment  which  is  defeated  by  such  foreclosure,  such 
lessee  is  entitled  to  so  much  of  such  surplus  as  would  make 
good  the  difference  between  the  value  of  his  term  and  the 
rent  he  is  to  pay  for  it ;  or,  in  other  words,  the  value  of  the 
use  of  the  premises  during  his  term,  less  the  amount  of  the 
rents  to  be  paid    by  him   for^  the  same.'     And  in  any  case, 

1  Brown  v.  Tyler,  8  Gray,  135;  Stevens  v.  Dedham,  129  Mass.  547,  551. 

2  Marston  v.  Marston,  45  Me.  412.     See  Bradley  v.  Chester  V.  R.  R.,  36  Penn. 
St.  141,  150. 

3  Marston  v.  Marston,  45  Me.  412-416  ;  Haynes  v.  "Wellington,  25  iMe.  458. 
*  Stat,  at  Large,  1863,  vol.  2,  p.  199. 

6  Gage  V.  Brewster,  31  N.  Y.  218. 

«  Cheney  r.  Woodruff,  45  N.  Y.  98. 

7  Clarkson  v.   Skidmore,  46   N.  Y.  297.     But  see  Burr  v.  Stenton,  43  N.  Y. 
462. 


228  MORTGAGES. 

tlic  surplus,  if  the  sale  is  after  the  mortgagor's  death,  is  real 
estate.^ 

§  1176,  Parties  to  Foreclosure  Proceedings.  —  It  is  often  im- 
portant to  ascertain  who  should  be  made  parties  to  proceedings 
to  foreclose  a  mortgage  as  plaintiffs  and  defendants.  As  a 
general  proposition,  all  parties  in  interest  should  be  made  par- 
ties to  such  a  process,  since  parties,  tiiough  interested,  if  not 
before  the  court,  are  not  bound  by  its  decree.^  A  decree  as  to 
them  is  a  nullity,  nor  are  their  rights  affected  by  it.^  Whether 
a  wife  is  to  be  affected  by  a  judgment  for  foreclosure  to  which 
she  is  made  a  party  or  not,  depends  upon  whether  she  signed 
the  deed.  If  she  did,  the  judgment  would  bind  her  ;  otherwise 
it  would  not.*^  Joint  tenants  of  a  mortgage  must  join  in  a  suit 
to  foreclose  it ;  one  cannot  sue  alone.^  A  second  mortgagee 
would  not  be  barred  of  his  right  to  redeem  from  the  first  by  a 
foreclosure  of  the  mortgagor's  interest  in  a  proceeding  between 
the  first  mortgagee  and  mortgagor  to  which  he  was  not  a  party. 
But  his  not  being  made  a  party  to  the  suit  did  not  affect  the 
decree  between  the  mortgagee  and  mortgagor.^  So  a  de- 
cree of  sale  for  purposes  of  foreclosure  of  a  mortgage  would 
be  void  as  to  a  purchaser  of  any  part  of  the  mortgaged  prem- 
ises who  should  not  have  been  made  a  party  to  such  process.' 
If  a  mortgagor  becomes  bankrupt,  his  equity  of  redemption, 
by  the  decree  declaring  him  such,  passes  to  his  assignee,  and  a 
foreclosure  thereof  made  without  making  such  assignee  a  party 

1  Dunning  v.  Ocean  Bk.,  61  N.  Y.  497. 

2  Goodrich  v.  Staples,  2  Ciish.  258  ;  Williamson  v.  Field,  2  Sandf.  Ch.  533  ; 
McCall  V.  Yard,  9  N.  J.  V.^i.  358  ;  Valentine  v.  Havener,  20  Mo.  133  ;  Webb  v. 
ilaxan,  11  Tex.  678  ;  Caldwell  v.  Taggart,  4  Pet.  190  ;  Farwell  v.  Murphy,  2  Wis. 
533  ;  Hunt  v.  Acre,  28  Ala.  580  ;  Finley  v.  U.  S.  Bk.,  11  Wheat.  304.  The  owner 
of  the  equity  always  must  be  a  party,  whether  his  deed  is  I'ecorded  or  not.  Hall  v. 
Nelson,  23  Barb.  88  ;  Porter  v.  Clements,  3  Ark.  364 ;  White  v.  Watts,  18  Iowa, 
74  ;  Anson  v.  Anson,  20  Iowa,  55  ;  Chase  v.  Abbott,  20  Iowa,  154  ;  Carpentier  v. 
Williamson,  25  Cal.  154  ;  McArthur  w.  Franklin,  15  Ohio  St.  485;  2  Spence,  Eq. 
Jur.  703 ;  Montgomery  v.  Tutt,  11  Cal.  307. 

3  Cutter  V.  Jones,  52  111.  84. 

*  Moomey  v.  Maas,  22  Iowa,  380. 

5  Webster  v.  Vandeventer,  6  Gray,  428. 

6  Goodman  v.  White,  26  Conn.  317,  320  ;  Vanderkemp  v.  Shelton,  11  Paige, 
28  ;  Grattan  v.  Wiggins,  23  Cal.  16,  32  ;  Davenport  v.  Turpin,  43  Cal.  597  ; 
Newcomb  v.  Dewey,  27  Iowa,  381;  De  Lashmutt  v.  Sellwood,  10  Oreg.  319; 
Holmes  V.  Bybee,   34  Ind.  262. 

^  Ohliug  V.  Luitjens,  32  111.  23. 


OF   FORECLOSURE.  229 

would  be  void.  The  assignee  might  still  redeem  the  estate.^ 
So  if  such  junior  mortgagee  see  fit  to  redeem  from  the  senior, 
who  has  foreclosed  as  to  the  mortgagor,  he  may  do  so,  and 
would  not  be  liable  for  the  costs  of  the  former  process.^  Who- 
ever is  interested  in  the  estate  at  the  time  of  commencing  pro- 
ceedings to  foreclose  it,  —  second  incumbrancers,  for  instance, 
—  must  be  made  parties,  or  they  will  not  be  bound  by  these 
proceedings.  Nor  is  it  material  whether  this  interest  was 
acquired  before  or  after  the  making  of  the  mortgage-deed.^ 
But  if  a  person  becomes  interested  in  the  estate  by  purchase 
pendente  lite,  he  need  not  be  made  party  to  the  suit."*  Every 
person  purchasing  an  interest  in  an  estate  during  the  ])endency 
of  a  suit  affecting  the  title  to  the  same  is  bound  by  the  judgment 
in  such  suit,  without  being  made  a  party  to  the  same.  Such  a 
purchase  pendente  lite  is  in  law  a  notice  to  the  purchaser  as 
much  as  if  he  was  formally  made  a  party  to  it.^  Judgments 
and  decrees  bind  equally  parties  and  privies;  and  purchasers, 
pendente  lite,  stand  in  the  latter  category.^  Where  a  mortgage 
had  been  assigned  to  several,  and  one  of  them  died,  his  in- 
terest in  the  mortgage-debt  was  held  to  survive  to  the  others, 
and  his  personal  representatives  need  not  be  made  parties  to  a 
bill  of  foreclosure.  But  where  the  holder  of  a  mortgage  by  an 
equitable  title  only  wished  to  foreclose  the  same,  it  was  held 
that  he  should  make  him  a  party  in  whom  was  the  legal  title.'' 
So  in  those  States  in  which  rights  of  homestead  exist  in  favor 
of  wives,  the  wife  of  the  owner  of  the  equity  of  redemption 
will  not  be  bound  by  a  decree  of  foreclosure  against  her  hus- 
band, unless  she  is  made  a  party  to  it.^     In  applying  the  rule 

1  Winslow  V.  Clark,  47  N.  Y.  261. 

2  Gage  V.  Brewster,  31  N.  Y.  218  ;  Grattan  v.  Wiggins,  23  Cal.  32. 

3  Haines  v.  Beach,  3  Johns.  Ch.  459  ;  Fisher,  Mortg.  187  ;  Heyman  v.  Lowell, 
23  Cal.  106  ;  Skinner  v.  Buck,  29  Cal.  253. 

4  Hull  V.  Lyon,  27  Mo.  570. 

6  Story,  Eti.  §§  405-407  ;  Hayes  v.  Shattuck,  21  Cal.  51  ;  Montgomery  v. 
Middlemiss,  id.  103.  See,  as  to  lis  pendens  and  its  effect,  Fisher,  Mortg.  221, 
335-339  ;  Jackson  v.  Warren,  32  111.  331  ;  Haven  v.  Adams,  8  Allen,  363. 

6  Dickson  v.  Todd,  43  111.  504  ;  Crooker  v.  Crooker,  57  Me.  395 ;  Snowman  v. 
Harford,  id.  397. 

^  Martin  v.  McReynolds,  6  Mich.  70  ;  Cote  v.  Deciuindre,  Walker,  Ch.  64. 

8  Eevalk  V.  Kraemer,  8  Cal.  66  ;  Tadlock  v.  Eccles,  20  Tex.  782 ;  Larson  v. 
Reynolds,  13  Iowa,  579;  Moss  v.  Warner,  10  Cal.  296. 


230  MORTGAGES. 

as  to  parties  in  interest,  it  has  been  held  that  all  inciim- 
brancei's  upon  the  same  estate,  whether  prior  ^  or  subsequeiit,^ 
should  be  made  defendants  to  a  bill  for  foreclosure  ;  and  that, 
if  a  second  mortgagee  seeks  to  foreclose  under  his  mortgage, 
he  must  make  the  prior  mortgagee  a  party  to  his  bill,^  [But 
the  universality  of  this  rule  may  well  be  doubted.  Subsequent 
incumbrancers  are  proper  but  not  necessary  parties ;  and  the 
rule  as  to  prior  incumbrancei's  seems  to  be  correctly  stated  by 
Mr.  Roger  Foster'^  thus  :  Prior  incumbrancers  should  not  be 
made  parties,^  unless  the  bill  prays  for  a  receiver,*'  or  seeks  to 
obtain  a  sale  of  the  entire  property  free  from  all  liens,'^  or  un- 
less "  there  is  substantial  doubt  respecting  the  amount  of  debts 
due  prior  lien  creditors,"  in  which  case  "  there  is  obvious 
propriety  in  making  them  parties,  that  the  amount  of  the 
charge  remaining  on  tlie  land  after  the  sale  may  be  deter- 
mined, and  that  purchasers  at  the  sale  may  be  advised  of  what 
they  are  purchasing ; "  ^  or  unless  there  are  other  peculiar  cir- 
cumstances making  it  necessary.  And  if  a  prior  mortgagee  is 
made  a  party  in  order  to  sell  the  property  free  from  incum- 
brances, it  is  necessary  that  the  prior  mortgage  be  overdue.^] 
As  a  general  proposition,  prior  parties  are  not  affected  by  a 
foreclosure  of  a  later  mortgage.^*^  And  it  is  clear  that  such 
prior  mortgagee  should  not  be  a  party  in  case  of  what  is  called 
a  strict  foreclosure,  since  this  does  not  bind  him,  but  only  cuts 
off  the  mortgagor  and  subsequent  mortgagees,  who  stand,  as 

1  Ducker  v.  Belt,  3  Md.  Ch.  Dec.  13,  23  ;  A'andeikemp  v.  Sheltou,  11  Paif^e, 
28  ;  U.  S.  Bk.  v.  Carroll,  4  B.  Mon.  40  ;  Champliii  v.  Foster,  7  B.  Mon.  104  ; 
Clark  V.  Prentice,  3  Dana,  468.  And  the  prior  mortgagee  may  restrain  the  later 
mortgagee,  if  not  made  a  party.     Rucks  v.  Taylor,  49  Miss.  552. 

2  Brown  v.  Nevitt,  27  Miss.  801 ;  Porter  v.  Mailer,  65  Cal.  512. 

3  Wylie  V.  McMakin,  2  Md.  Ch.  Dec.  413  ;  Shiveley  v.  Jones,  6  B.  Mon.  274  ; 
Roll  V.  Smalley,  6  N.  J.  Eq.  464;  Clark  v.  Prentice,  3  Dana,  468;  Persons, 
Merrick,  5  Wis.  231. 

*  1  Foster's  Fed.  Prac.  §  44. 

5  Calvert  on  Parties  (2d  ed.),  105  ;  Cholmondeley  r.  Clinton,  3  Jac.  &  W.  138; 
Saumarez  v.  Saumarez,  4  M.  &  C.  331 ;  Dial  v.  Reynolds,  96  U.  S.  340. 

6  Miltenberger  v.  Logansport  R'y  Co.,  106  U.  S.  286,  306. 

7  Jerome  v.  McCarter,  94  U.  S.  734. 

8  Ibid. 

9  Roll  V.  Smalley,  6  N.  J.  Eq.  464. 

10  ^Yeed  i;.  Beebe,  21  Vt.  495;  Jerome  v.  McCarter,  94  U.  S.  734;  Summers  v. 
Brondey,  28  Mich.  125  ;  Tome  v.  Loan  Co.,  34  Md.  12. 


OF   FORECLOSURE.  231 

to  the  second  mortgagee,  as  assignees  of  the  mortgagor's  equity 
of  redemption.^  So  where  a  mortgage  may  be  foreclosed  by 
entry  upon  the  land,  and  holding  possession,  a  subsequent 
mortgage  is  foreclosed  thereby,  whether  the  entry  is  made  and 
possession  gained  in  pais  or  under  judgment  of  court,  although 
no  formal  notice  was  given  to  such  subsequent  mortgagee.^ 
Judgment  lienors  are  proper  but  not  necessary  parties.^  A 
mortgagor  need  not  be  made  party  to  a  bill  for  foreclosure, 
where  he  has  parted  with  his  equity  of  redemption,'*  unless  he 
shall  have  done  so  with  a  general  warranty  of  title.^  Where, 
therefore,  a  mortgagor  had  conveyed  his  estate  to  a  third  per- 
son, who  had  conveyed  the  same  to  the  mortgagor's  wife,  it 
was  held  that  the  writ  of  entry  by  the  mortgagee  for  the  pur- 
pose of  foreclosing  the  mortgage  should  be  brought  against  the 
wife  of  the  mortgagor,  and  not  against  him.^  So  if  one  pur- 
chase of  a  mortgagor,  and  then  convey  to  a  third  party,  though 
it  be  with  warranty,  he  need  not  be  made  a  party  to  a  suit  for 
foreclosure.'^  Nor  can  the  title  of  one  who  claims  adversely 
to  the  mortgagor,  by  a  title  prior  to  the  mortgage,  be  affected 
by  being  made  a  party  to  such  a  bill  against  the  mortgagor. 
He  should  not  be  made  a  party  at  all.^  Nor  are  the  officers  of 
a  corporation  mortgagor  proper  parties  defendant.^  The  owner 
of  the  equity  of  redemption  is  a  necessary  party ,^*^  and  this 

1  1  Daniell,  Ch.  Pract.  262  ;  Coote,  Mortg.  523  ;  Smith  v.  Chapman,  4  Conn. 
344. 

2  Downer  v.  Clement,  11  N.  H.  40  ;  Oilman  v.  Hidden,  5  N.  H.  30. 

8  Felder  v.  Murphy,  2  Rich.  Eq.  58  ;  Minis  v.  Minis,  1  Humph.  425;  Person  v. 
Merrick,  5  Wis.  231 ;  Adams  v.  Paynter,  1  Coll.  530  ;  Brainard  o.  Cooper,  10  N.  Y. 
356  ;  Gage  v.  Brewster,  31  N.  Y.  225  ;  Alexander  v.  Greenwood,  24  Cal.  511. 

4  Shaw  V.  Hoadley,  8  Blackf.  165;  Lockwood  v.  Benedict,  3  FaIw.  Ch.  472; 
Heyer  v.  Pruyn,  7  Paige,  465.  In  Massachusetts  he  may,  but  need  not,  be  made 
a  party.  Pub.  Stat.  c.  181,  §  9.  See  also  Maine,  Rev.  Stat.  1883,  c.  90,  §  13  ; 
Delaplaine  v.  Lewis,  19  Wis.  476. 

s  Bigelow  V.  Bush,  6  Paige,  343  ;  Buchanan  v.  Monroe,  22  Tex.  537. 

«  Campbell  v.  Bemis,  16  Gray,  485. 

^  Soule  V.  Albee,  31  Vt.  142. 

8  Holcomb  V.  Holcomb,  2  Barb.  20  ;  Corning  v.  Smith,  6  N.  Y.  82;  Brundage 
V.  Mission.  Soc,  60  Barb.  204  ;  Mcich.  Bk.  v.  Thomson,  55  N.  Y.  7  ;  Newman  v. 
Home  In.s.  Co.,  20  Minn.  422. 

9  Johnes  v.  Cutwater,  55  N.  J.  Eq.  398;  s.  c.  36  Atl.  Rep.  483. 

1"  Hall  u.  Nelson,  23  Barb.  88  ;  Bradley  v.  Snyder,  14  lU.  263  ;  Brundred  v. 
Walker,  12  N.  J.  Eq.  140  ;  Veach  v.  Schaup,  3  Iowa,  194  ;  Hodson  v.  Treat,  7  Wis. 


232  MORTGAGES. 

applies  to  purchasers  of  parts  of  the  mortgaged  premises, 
owners  at  tlie  time  of  foreclosure.^  In  New  York,  the  wife  of 
the  grantee  of  a  mortgagor  must  be  made  a  party,  while  in 
Missouri  she  need  not  be ;  nor  is  the  widow  of  the  mortgagor 
a  necessary  party  defendant  in  Tennessee.^  But,  in  Massa- 
chusetts, a  mortgage  may  be  foreclosed  by  a  suit,  judgment, 
and  possession,  so  as  to  bar  the  wife  of  the  mortgagor  who  has 
joined  in  the  deed,  although  not  a  party  to  the  suit.  But  such 
is  not  the  case  in  Ohio.  And  the  difference  may  arise,  per- 
haps, from  the  length  of  time  after  a  mortgagee  gains  pos- 
session, during  which  he  must  hold  it  before  it  works  a 
foreclosure,  which  operates  as  a  notice  to  the  wife  of  the 
pendency  of  the  process.^  If  the  mortgagor  be  dead,  his  heir 
or  devisee  is  to  be  the  party  defendant  in  a  process  for  fore- 
closure, and  not  his  personal  representatives;  [unless  the  land 
is  assets  to  be  administered,  in  which  case  the  personal  repre- 
sentatives are  necessary  parties;  or  a  deficiency  decree  may  be 
taken,  in  which  case  they  are  proper  parties.*]  In  Illinois,  the 
proceedings  may  be  against  the  heir,  or  the  executors  or  ad- 
ministrators of  the  mortgagor,  at  the  plaintiff's  election.^  In 
Wisconsin,  where  there  are  several  notes  secured  by  a  mort- 
gage, and  one  of  them  has  been  assigned,  the  assignee  may  be 
joined  as  a  defendant  in  a  bill  to  foreclose ;  while  it  is  held 
otherwise  in  Missouri,  the  proceeding  in  the  latter  State  being 

263 ;  Wolf  V.  Banning,  3  Minn.  202,  204  ;  Hall  v.  Hoggins,  19  Ala.  200  ;  Cliilds 
V.  Childs,  10  Ohio  St.  339. 

1  AVoodward  v.  Brown,  119  Cal.  283  ;  s.  c.  51  Pac.  Eep.  2  ;  s.  c.  63  Am.  St. 
Rep.  108. 

2  Mills  V.  Van  Voorhis,  23  Barb.  125  ;  20  N.  Y.  412 ;  Thornton  v.  Pigg,  24  Mo. 
249  ;  Minis  v.  Minis,  1  Humph.  425  ;  Bell  v.  The  Mayor,  10  Paige,  49  ;  Wheeler 
V.  Morris,  2  Bosw.  524  ;  Denton  v.  Nanny,  8  Barb.  618.  See  Smith  v.  Gardner, 
42  Barb.  356,  365,  as  to  cases  of  mortgages  made  before  marriage. 

3  Pitts  V.  Aldrich,  11  Allen,  39  ;  Farwell  v.  Getting,  8  Allen,  211 ;  Savage  v. 
Hall,  12  Gray,  363  ;  Mc Arthur  v.  Franklin,  15  Ohio  St.  485,  510 ;  s.  c.  16  Ohio 
St,  193;  Davis  v.  Wetherell,  13  Allen,  60  ;  Newhall  v.  Lynn  Sav.  Bk..  101  Mass. 
428,  431. 

*  Slaughter  v.  Foust,  4  Blackf.  379  ;  Shirkey  v.  Hanna,  3  Blackf.  403 ;  Graham 
W.Carter,  2  Hen.  &  M.  6;  Mclver  v.  Cherry,  8  Humph.  713;  Sheldon  v.  Bird, 
2  Root,  509  ;  Worthington  v.  Lee,  2  Bland,  678  ;  Harvey  v.  Thornton,  14  111.  217  ; 
Belloc  V.  Rogers,  9  Cal.  123;  Bayly  v.  Miiche,  65  Cal.  345;  Miles  v.  Sniitli, 
22  Mo.  502  ;  Averett  v.  Ward,  Busbee,  Eri.  192  ;  Magruder  ;;.  Offutt,  Dudley  (Ga.), 
227. 

6  Rockwell  V.  Jones,  21  111.  279. 


OF   FORECLOSURE.  233 

a  proceeding  at  law,  and  not  governed  by  the  rules  of  equity.^ 
And  by  the  law  of  Wisconsin,  where  there  were  three  notes 
secured  by  a  mortgage,  held  by  different  individuals,  the  first 
of  which  had  been  paid,  and  the  holder  of  the  third  wished  to 
foreclose  the  mortgage,  it  was  held  that  he  must  make  the 
holder  of  the  second  note  a  party  to  such  proceeding.^  But  a 
receiver  of  a  mortgagee,  appointed  by  a  court  of  a  State  of 
which  lie  is  a  citizen,  will  not  be  admitted  to  prosecute  a  suit 
to  foreclose  a  mortgage  in  another  State,  unless  tlie  mortgagee 
shall  have  made  a  formal  assignment  of  the  mortgage  to  him ; 
and  in  that  case  he  acts  as  assignee,  and  not  as  a  receiver.^ 
To  a  bill  to  foreclose,  sued  by  a  trustee,  the  eestuis  que  trust 
should  all  be  joined  as  parties.*  And  accordingly,  where,  as 
in  Maine,  when  the  holder  of  the  legal  estate  of  a  mortgagee 
has  parted  with  the  debt,  he  becomes  trustee  for  the  holder  of 
the  debt,  both  should  join  in  a  process  for  foreclosure ;  ^  and  if 
there  are  two  or  more  joint  mortgagees  they  must  all  join  in  a 
bill  for  foreclosure.^  And  where  one  of  several  persons  who 
hold  notes  secured  by  a  joint  mortgage  wishes  to  sue  upon  the 
mortgage,  he  may  use  the  names  of  the  others  in  a  process  at 
law,  upon  giving  them  indemnity  for  costs.  In  such  a  case 
they  must  all  be  joined.''  But  if  the  mortgage  be  to  several  to 
secure  notes  owned  separately  and  distinctly,  and  one  of  these 
be  paid,  the  payee  cannot  sue  on  the  mortgage  in  his  own 
name,  though  he  is,  in  fact,  the  sole  survivor  of  the  several 
persons  named  in  the  mortgage,  as  the  mortgage  in  respect  to 
him  will  have  become  extinct.^ 

1  Armstroug  v.  Pratt,  2  Wis.  299  ;  Thayer  v.  Campbell,  9  Mo.  277,  280. 

2  Pettibone  v.  Edwards,  15  Wis.  95. 

3  Graydon  v.  Church,  7  Mich.  36,  51 ;  Booth  v.  Clark,  17  How.  332,  339. 

*  Davis  V.  Hemingway,  29  Vt.  438;  Wood  v.  Williams,  4  Madd.  186  ;  Lowe  v. 
Morg.in,  1  Bro.  C.  C.  368  ;  Story,  Eq.  PI.  §  201.  See  Somes  v.  Skinner,  16  Mass. 
348  ;  Daniell,  Ch.  Pract.  267  ;  Martin  v.  McReynolds,  6  Mich.  70. 

s  Beals  v.  Cobb,  51  Me.  348. 

6  Hopkins  v.  Ward,  12  B.  Mon.  185  ;  Shirkey  u.  Hanna,  3  Blackf.  403 ; 
Stacker  v.  Stucker,  3  J.  J.  Marsh.  301;  Hartwell  v.  Blocker,  6  Ala.  581  ;  Saun- 
ders V.  Frost,  5  Pick.  259  ;  Johnson  v.  Brown,  31  N.  H.  405 ;  W^ebster  v. 
Vandeventer,  6  Gray,  428 ;  Powell,  Mortg.  904  a,  u.  ;  1  Daniell,  Ch.  Pract. 
260. 

■^  Johnson  v.  Brown,  supra.  Otherwise  in  Missouri,  where  each  may  sue  alone. 
Thayer  v.  Campbell,  9  Mo.  277,  280. 

8  Burnett  v.  Pratt,  22  Pick.  556  ;  Mitchell  v.  Buruham,  44  Me.  286,  305. 


234  MORTGAGES. 

§  1177.  Conclusiveness  of  the  Judgment.  —  It  may  be  added 
as  a  kind  of  corollary  to  what  has  been  stated  above,  that  the 
rights  of  every  one  who  is  properly  made  a  party  to  the  process 
are  concluded  by  a  judgment  of  foreclosure.^  But  this  would 
not  extend  to  parties  who  were  not  parties  or  privies  to  the 
mortgage,  as  in  the  case  before  cited  of  a  wife  made  party  to  a 
process  of  foreclosure  who  did  not  join  in  the  mortgage  ;  ^  or 
of  one  claiming  adversely  to  the  mortgagor.^  [But  estates  lim- 
ited over  to  persons  not  in  esse  are  represented  by  the  owner 
of  the  first  estate  of  inheritance,  and  the  former  are  concluded 
by  a  foreclosure  decree  against  the  latter.*]  And  if,  upon  a 
bill  to  redeem,  the  plaintiff  fail  to  comply  with  the  terms  which 
the  court  has  prescribed  upon  which  it  may  be  done,  it  will  be 
an  effectual  bar  to  a  further  process  for  redemption.^ 

§  1178.  Foreclosure  after  Mortgagee's  Death.  —  The  law  of 
the  States  is  general,  though  not  uniform,  that,  where  a  mort- 
gagee is  dead,  his  personal  representatives,  and  not  his  heirs, 
are  the  persons  to  maintain  a  process  of  foreclosure,^  If  there 
be  a  joint  mortgage  to  two  to  secure  a  joint  debt,  and  one  of 
them  die,  the  survivor  sues  alone  to  foreclose  it."  But  where  a 
bond  and  mortgage  were  made  to  husband,  conditioned  to  sup- 
port him  and  his  wife,  and  the  husband  died,  it  was  held  that 
it  was  to  be  enforced  after  that  in  the  name  of  his  adminis- 
trator. She  would  be  the  one  to  demand  the  support,  and 
she  may  do  this  though  she  were  to  marry  again.  But  she 
could  not  enter  for  condition  broken,  nor  could  she  demand 
anything  towards  the  support  of  her  second  husband.^  Upon 
the  foreclosure  of  a  mortgage  by  an  executor,  the  land  belongs 
to  the  parties  who  would  have  been  entitled  to  the  debt  if  paid 
and  not  used  in   administration,  subject  to  the  right  of   the 

1  Grattan  v.  Wiggins,  23  Cal.  16,  32  ;  Shores  v.  Scott  River  Co.,  21  Cal.  135. 

2  Mooiuey  v.  Maas,  22  Iowa,  380. 

3  Banning  v.  Bradford,  21  Minn.  308. 

<  Dunham  v.  Doremus,  55  N.  J.  Eq.  511 ;  s.  c.  37  Atl.  Eep.  62. 

s  4  Kent,  186. 

6  Kinna  v.  Smith,  3  N.  J.  Eq.  14  ;  Riley  v.  McCord,  24  Mo.  265  ;  Smith  v. 
Dyer,  16  Mass.  18  ;  Dewey  v.  Van  Dusen,  4  Pick.  19  ;  Perkins  v.  \Yoods,  27  Mo. 
547.  Though  once  held  necessary  to  join  the  heir  in  Maryland,  it  seems  to  be 
otherwise  by  statute  now.     Worthingtou  v.  Lee,  2  Bland,  678. 

■^  Blake  v.  Sanborn,  8  Gray,  154. 

8  Holmes  v.  Fisher,  13  N.  H.  9. 


OF   FORECLOSURE.  235 

executor  to  dispose  of  it  in  the  discharge  of  his  office.^  If  a 
mortgagee  has  assigned  his  entire  interest  in  the  mortgage, 
his  assignee  may  sue  for  foreclosure  in  his  own  name 
without  joining  the  original  mortgagee,  though  it  is  otherwise 
if  the  assignment  be  a  limited  or  conditional  one.^ 

§  1179.  Trying  Adverse  Title  —  Multifariousness.  —  It  is  laid 
down  as  a  doctrine  of  the  courts,  that  a  mortgagee's  title  is  not 
open  to  investigation  in  a  process  by  him  for  foreclosure  ;  the 
only  effect  of  a  decree  in  such  a  proceeding  being  to  bar  the 
mortgagor's  equity  of  redemption,  leaving  the  mortgagee  to 
pursue  his  legal  remedies  to  establish  his  title  to  the  estate.^ 
But  this  would  not  seem  to  be  true  where  the  remedy  of  the 
mortgagee  for  foreclosing  his  mortgage  is  by  a  suit  at  common 
law  for  possession,  where  the  issue  between  the  parties  may  in- 
volve the  seisin  and  freehold  in  the  mortgagee.  In  an  action  to 
recover  possession,  the  mortgagor  is  estopped  by  his  deed 
to  deny  the  title  of  mortgagee  to  the  premises  at  the  time 
of  making  the  mortgage.^  And  it  is  true  that  a  foreclosure 
suit  is  not  a  proper  one  in  which  to  try  the  rights  of  litigant 
parties  who  claim  title  to  the  mortgaged  premises  hostile  to 
that  of  the  mortgagor,  even  though  all  the  parties  to  the  suit, 
and  although  all  claimants  whose  titles  are  derived  from  the 
mortgagor  subsequently  to  the  making  of  the  mortgage,  ought 
to  be  made  parties  to  such  suit.^  If  a  party  summoned  claims 
nothing  in  the  estate  subsequent  and  subject  to  the  mortgage, 
he  ought  to  disclaim,  and  have  the  suit  dismissed  as  to  him. 
But  if  he  sets  up  a  title  paramount  to  the  mortgage,  it  would 
be  no  answer  to  the  allegations  in  the  bill  or  process  of  fore- 

1  Fifield  V.  Sperry,  20  N.  H.  338  ;  Mass.  Pub.  Stat.  c.  133,  §§  7,  9,  10, 

2  Daniel],  Cli.  Pract.  307  ;  Whitney  v.  M'Kinney,  7  Johns.  Ch.  144  ;  Kittle  v. 
Van  Dyck,  1  Sandf.  Ch.  76 ;  Lamson  v.  Falls,  6  Ind.  309  ;  McGuffey  v.  Finley, 
20  Ohio,  474  ;  Ward  v.  Sharp,  15  Vt.  115  ;  Miller  v.  Henderson,  10  N.  J.  Eq. 
320;  Lewis  v.  ISTangle,  2  Ves.  Sr.  431 ;  Story,  Eq.  PL  §  199. 

3  Coote,  Mortg.  517  ;  Powell,  Mortg.  965  ;  Anon.,  2  Cas.  in  Ch.  244  ;  Broome 
V.  Beers,  6  Conn.  198  ;  Palmer  v.  Mead,  7  Conn.  149.  In  Connecticut,  the  as- 
signee of  the  debt  may  have  a  foreclosure,  though  the  legal  estate  has  not  been 
conveyed  to  him.  Austin  v.  Burbank,  2  Day,  474  ;  Holcomb  v.  Holcomb,  2  Barb. 
20  ;  Jones  v.  St.  John,  4  Sandf.  Ch.  208  ;  Corning  v.  Smith,  6  N.  Y.  82. 

*  Concord  Ins.  Co.  v.  Woodbury,  45  Me.  447. 

5  Lewis  V.  Smith,  9  N.  Y.  502,  514  ;  Corning  v.  Smith,  6  N.  Y.  82  ;  Eagle  F.  I. 
Co.  V.  Lent,  6  Paige,  635  ;  Pelton  v.  Farmin,  18  Wis.  222,  227 ;  Palmer  v.  Yager, 
20  Wis.  91,  103. 


236  MORTGAGES. 

closure.^  Nor  would  any  judgment  in  such  foreclosure  suit 
affect  his  paramount  title  acquired  before  the  mortgage  in  suit 
was  made.2  And  if  a  subsequent  mortgagee  is  summoned  as  a 
party  in  such  suit,  he  can  make  no  objection  to  the  proceeding, 
unless  he  can  show  that  he  would  sustain  some  loss  or  injury 
by  a  judgment  therein.^ 

§  1180.  Decrees  against  Infants.  —  The  effect  of  a  decree  of 
foreclosure  in  equity  upon  an  infant  holder  of  an  equity  of  re- 
demption is  said  to  be,  that  he  will  be  bound  by  it,  unless  within 
six  months  after  arriving  at  age  he  shall  show  some  error  in 
the  foreclosure ;  *  and  if  the  foreclosure  is  by  a  sale  of  the 
premises,  the  infant  cannot  disturb  the  title  acquired  under 
such  a  decree  ;  ^  and  probably  one  reason  why  a  judgment  in 
such  cases  would  be  binding  upon  the  infant  is  the  general  juris- 
diction which  chancery  has  over  infants,  and  the  precautions 
adopted  in  that  court  to  protect  their  interests.  Whereas, 
where  the  remedy  for  foreclosure  is  by  a  suit  at  common  law, 
the  same  rule  would  probably  apply  to  judgments  for  fore- 
closure as  to  other  judgments,  in  requiring  the  precaution  of 
having  a  guardian  ad  litem  appointed,  in  order  to  their  being 
valid. 

§  1181,  Decrees  against  Married  Women.  — In  respect  to  the 
effect  of  such  a  decree  upon  the  rights  of  a  feme  covert,  it  seems 
that  she  would  be  bound  by  it  if  the  bill  is  brought  against  her 
and  her  husband,  even  though  he  neglect  to  defend.^  But  this 
depends,  as  above  stated,  upon  whether  she  was  a  party  to  the 
mortgage-deed  according  to  statutory  provision.'^  And  where, 
as  in  Massachusetts,  a  mortgage  is  foreclosed  by  possession 
taken,  and  continued  a  prescribed  length  of  time,  a  wife  would 
not  be  bound  by  such  entry  and  possession  by  the  mortgagee 
without  notice  to  her,  though  known  and  assented  to  by  the 

^  Pelton  V.  Farmin,  supra ;  Corning  v.  Smith,  supra  ;  Macloon  v.  Smith,  49 
Wis.  200. 

2  Strobe  v.  Downer,  13  Wis.  10  ;  Lewis  v.  Smith,  supra;  Eathbone  v.  Hooney, 
68  N.  Y.  463  ;  Emig.  Sav.  Bk.  v.  Goldman,  75  N.  Y.  127  ;  Jerome  v.  McCarter, 
94  U.  S.  734. 

3  Mann  v.  Thaj'er,  18  Wis.  479. 
*  2  Cruise,  Dig.  199. 

6  Mills  V.  Dennis,  3  Johns.  Ch.  367. 
6  Mallack  v.  Galton,  3  P.  Wma.  352. 
^  Moomey  v.  Maas,  22  Iowa,  380. 


OF   FORECLOSURE.  237 

husband.^  *  But  it  seems  now  that  the  wife's  interest  in  her 
husband's  estate  may  be  foreclosed  under  the  statute  process  for 
that  purpose,  althou<^h  she  is  not  made  a  party  to  the  same.^ 

§  1182.  Right  of  Surety  Mortgagee  to  foreclose.  —  Mort- 
gages, as  has  been  stated,  are  often  given  by  way  of  indemnity 
to  sureties;  and  in  such  case  it  is  held,  that  if  the  principal 
fails  to  pay  the  debt  at  maturity,  and  thereby  subjects  the 
surety  to  liability  to  a  suit,  it  will  be  such  a  breach  that  the 
mortgagee  may  proceed  to  take  possession  for  condition  broken. ^ 
Though  it  would  seem  that  he  cannot  have  a  decree  for  fore- 
closure until  he  has  paid  the  debt  of  the  principal.^ 

§  1183.  Effect  of  Foreclosure  upon  the  Estate.  —  The  efifect 
of  a  foreclosure  is  to  convert  the  mortgagee's  interest  into  real 
estate,  which  goes  to  his  heirs  by  descent.^  Though  by  statute 
in  Massachusetts,  if  the  foreclosure  is  by  the  executor  or  ad- 
ministrator of  the  mortgagee,  it  is  distributed  to  the  same 
persons  as  would  take  the  distributive  shares  of  the  personal 
estate. 

§1184.  Effect  of  Foreclosure  upon  the  Debt.  —  If  amort- 
gage  is  foreclosed,  the  debt  is,  to  the  extent  of  the  value  of 
the  property  taken  by  the  mortgagee,  paid.  But  a  decree  for 
strict  foreclosure  does  not  operate  as  a  satisfaction  of  the  debt 
until  after  the  time  fixed  by  the  decree  for  redemption  has  ex- 
pired.^ And  where  the  mortgage  included  two  parcels,  one  of 
which  the  mortgagor  conveyed  to  A,  and  the  other  to  B,  and  the 

*  Note. — A  mortgage  by  an  inhnt  feme  covert  for  the  debt  of  her  husband  is 
absolutely  void,  not  merely  voidable.  Chandler  r.  McKinney,  6  Mich.  217  ;  Adams 
V.  Ross,  30  N.  J.  505,  513;  Cason  v.  Hubbard,  38  Miss.  35,46;  Markham  y. 
Merrett,  7  How,  (Miss.)  437. 

1  Hadley  v.  Houghton,  7  Pick.  29  ;  Swan  v.  Wiswall,  15  Pick.  126. 

2  Davis  V.  Wetherell,  13  Allen,  62  ;  Newhall  r.  Lynn  Sav.  Bk.,  101  Mass,  430. 
8  Shaw  V.  Loud,  12  Mass.  449 ;  Oilman  v.  Moody,  43  K  H,  239,  243. 

*  Shepard  v.  Shepard,  6  Conn.  37  ;  Francis  v.  Porter,  7  Ind.  213  ;  Ellis  v. 
Martin,  id.  652  ;  McLean  v.  Eagsdale,  31  Miss,  701  ;  Pope  v.  Hays,  19  Tex.  375, 
378  ;  Rockfeller  v.  Donnelly,  8  Cow.  623,  628  ;  Chace  v.  Hinman,  8  Wend.  452 ; 
Hall  V.  Nash,  10  Mich.  303  ;  Butler  v.  Ladue,  12  Mich.  180.  Alitcr,  where  the 
agreement  is  absolute  and  not  for  indemnity.  Furnas  v.  Durgin,  119  Mass.  600; 
Eeed  r.  Paul,  131  Mass.  129;  Williams  v.   Fowle,  132  Mass,   385. 

6  Swift  V.   Edson,  5  Conn,  531  ;  Mass.  Pub,  Stat.  c.  133,  §  10,     For  the  effect 
of  foreclosing  mortgages  upon  the  rights  of  tenants  to  emblements,  see  a7itc,  §  268. 
6  Peck's  App.,  31  Conn,  215  ;  Edgerton  v.  Young,  43  111.  464,  470. 


238  MORTGAGES. 

mortgage  was  foreclosed  as  to  A's  parcel,  it  was  held  that  B 
might  redeem  his  by  paying  the  balance  due  on  the  mortgage- 
debt  after  deducting  the  value  of  A's  parcel  from  the  amount 
of  the  original  debt.^  * 

*  Note.  —  Subjoined  the  reader  will  fiud  a  compendium  of  the  laws  of  the  sev- 
eral States,  with  some  of  the  leading  cases  bearing  upon  the  .sanit,  respecting  the 
foreclosure  of  mortgages,  which  may  serve,  among  other  things,  to  explain  some  of 
the  apparent  discrepancies  in  the  decisions  of  the  different  States.  The  methods  of 
enforcing  a  mortgage  and  obtaining  a  foreclosure  in  the  United  States  are  quite 
various  ;  though  the  more  prevalent  mode  is  by  a  bill  in  chancery  under  the  general 
and  inherent  jurisdiction  of  courts  of  equity,  subject  to  various  statutory  regula- 
tions in  the  details  of  proceedings,  or  by  a  suit  in  a  common  law  court  in  the 
nature  of  a  proceeding  in  equity.  Under  this  system,  the  general  course  is  for  the 
court  to  pass  an  interlocutory  decree  for  the  payment  of  the  money  into  court  by  a 
day  limited,  either  by  the  court  in  its  discretion,  or,  as  in  some  cases,  by  statute  ; 
on  default  of  which  the  land  is  decreed  to  be  sold  by  the  sheriff  or  a  master  iu 
chancery,  and  the  money  applied  to  the  payment  of  the  debt  and  the  costs,  and  the 
balance,  if  any,  is  delivered  to  the  debtor. 

In  Alabama,  the  equity  system  of  foreclosure  is  subject  to  few  statutory  reg- 
ulations. After  a  sale  of  the  estate  on  foreclosure,  the  mortgagor,  his  executor, 
administrator,  or  judgment  creditor,  may  redeem  the  land  of  the  purchaser  or  his 
vendee  within  two  years  thereafter,  on  payment  of  the  purchase-money  with  ten  per 
cent  interest,  together  with  the  value  of  all  permanent  improvements  made  by  the 
occupant.  Code  1896,  c.  97.  The  right  of  redeeming  after  a  sale  can  be  enforced 
only  in  equity.  Smith  v.  Anders,  21  Ala.  782.  On  a  bill  to  foreclose,  tlje  court 
could  formerly  only  decree  a  sale  or  foreclosure  ;  and  the  balance  of  the  debt  was 
piirsued  at  law,  and  could  not  be  recovered  unless  there  was  a  distinct  covenant  in 
the  mortgage  to  pay  the  debt,  or  a  separate  bond  or  note,  or  other  evidence  of  the 
debt.  Hunt  v.  Lewin,  4  Stew.  &  P.  138.  That  a  mortgage  contains  a  power  of 
sale  does  not  deprive  a  court  of  chancery  of  jurisdiction  to  foreclose.  Carradine  t>. 
O'Connor,  21  Ala.  573. 

In  Arkansas,  the  mortgagee  files  a  petition  for  foreclosure  in  the  circuit  court 
against  the  mortgagor  and  the  actual  occupants  of  the  estate.  Upon  the  trial  of 
the  petition,  if  it  be  found  that  the  petitioner  is  entitled  to  recover,  the  court 
render  judgment  for  the  debt,  interest,  and  costs,  and  order  the  property  to  be  sold. 
Before  sale,  the  property  may  be  redeemed,  and  by  Act  1879,  p.  94,  also  for  one 
year  after  sale.  If  the  property  proves  insufficient,  an  execution  may  be  issued 
against  the  defendant  as  on  an  ordinary  judgment.  Dig.  of  Stat.  1894,  §  5858.  These 
proceedings  are  essentially  those  of  a  court  of  chancery,  and  must  be  governed  by 
the  principles  and  rules  of  equity.  McLain  t'.  Smith,  4  Ark.  244  ;  Price  v.  State 
Bk.,  14  Ark.  50.  A  decree  must  fix  some  certain  time  for  payment,  in  default 
whereof  the  sale  is  to  be  made.     Fowler  v.  Byers,  16  Ark.    196. 

In  California,  mortgages  are  foreclosed  only  in  equity,  and  on  a  decree  of  sale 
upon  foreclosure,  if  the  debt  be  not  all  due,  only  sufficient  propeity  is  sold  to  pay 
the  amount  due ;  and  afterwards,  as  often  aa  more  becomes  due,  the  court  may,  on 
motion,  order  more  to  be  sold.    But  if  the  property  cannot  be  conveniently  divided, 

1  George  v.  Wood,  11  Allen,  41  ;  Hedge  v.  Holmes,  10  Pick.  380  ;  ante,  §  1172. 


OF   FORECLOSURE.  239 

the  whole  may  be  ordered  to  be  sold  in  the  first  instance,  and  the  entire  debt  paid. 
If  the  property  sold  is  not  sufficient  to  satisfy  the  debt,  the  court  may  order  an 
execution  for  the  balance.  Code  of  Civ.  Proc.  1899,  §  726.  There  is  the  same 
statutory  right  of  redemption  as  in  cases  of  sale  under  ordinary  judgments  at  law. 
McMillan  v.  Richards,  9  Cal.  365  ;  Koch  v.  Briggs,  14  Cal.  256,  263.  And  the  sale 
passes  the  entire  estate  of  the  mortgagor  to  the  purchaser,  who  may  take  possession 
under  his  deed  at  once  ;  and  if  resisted,  the  court  will,  by  writ,  put  him  in  posses- 
sion.    Montgomery  i'.  Middlemiss,  21  Cal.  103,  107. 

In  Oregon,  mortgages  are  foreclosed  by  suit  in  equity.  The  property  is  adjudged 
to  be  sold  to  satisfy  the  debt.  In  addition  to  the  decree  of  foreclosure  and  sale,  if 
it  appear  that  a  promissory  note  or  other  personal  obligation  for  the  payment  of  the 
debt  has  been  given  by  the  mortgagor,  the  court  also  decree  a  recovery  of  the  amount 
of  such  debt  against  the  mortgagor.  If  the  mortgaged  property  is  not  sufficient  to 
satisfy  the  decree,  the  amount  remaining  unsatisfied  may  be  enforced  by  execution, 
as  in  ordinary  cases.  A  decree  of  foreclosure  has  the  effect  to  bar  the  equity  of  re- 
demption ;  and  property  sold  on  execution  issued  upon  a  decree  may  be  redeemed 
as  in  ordinary  cases  of  sale  on  execution.  If  the  debt  is  payable  by  instalments  not 
then  due,  the  court  may  decree  a  sale  of  the  property  for  the  satisfaction  of  the 
whole  debt,  or  so  much  thereof  as  may  be  necessary  to  satisfy  the  instalment ;  and 
in  the  latter  case  the  decree  may  be  enforced  by  an  order  of  sale,  whenever  a  default 
shall  be  made.  Suit  for  foreclosure  cannot  be  maintained  during  pendency  of  action 
for  the  debt.     Annot.  Code  1887,  §  414  ct  seq. 

In  Florida,  all  mortgages  are  foreclosed  in  chancery  by  sale  of  the  premises. 
No  redemption  after  sale.  Rev.  Stat.  1892,  §  1987.  Personal  decree  may  be  en- 
tered for  deficiency.     Scott  v.  Russ,  21  Fla.  260. 

In  Georgia,  foreclosure  is  by  petition  in  the  superior  court,  which  grants  a  rule 
that  the  debt  be  paid  within  three  months  ;  which  rule  shall  be  published,  or 
served  upon  the  mortgagor.  Unless  so  paid,  the  court  order  the  property  to  be 
sold  as  upon  execution.  Code  1895,  §  2743.  Foreclosure  may  also  be  according  to 
practice  in  equity.     §  2770. 

In  Indiana,  a  suit  for  foreclosure  is  instituted  in  the  circuit  court  of  the  county 
where  the  land  lies.  In  rendering  judgment  of  foreclosure,  the  court  shall  order  a 
sale  of  the  premises  ;  and  when  there  is  contained  in  the  mortgage,  or  any  separate 
instrument,  an  express  written  agreement  for  the  payment  of  the  sum  of  money 
secured,  the  court  shall  direct  in  the  order  of  sale  that  the  balance  due  on  the 
mortgage,  and  costs  which  may  remain  unsatisfied  after  the  sale  of  the  mortgaged 
premises,  shall  be  levied  of  any  property  of  the  mortgage  debtor.  The  plaintiff 
shall  not  prosecute  any  other  action  for  the  debt  or  matter  secured  by  the  mort- 
gage while  he  is  foreclosing.  When  there  are  instalments  not  due,  the  complaint 
will  be  dismissed  on  payment,  before  final  judgment,  of  the  part  v'hich  is  due.  If 
such  payment  be  made  after  final  judgment,  proceedings  thereon  will  be  stayed. 
In  the  final  judgment,  the  court  direct  at  what  time  and  upon  what  default  any 
subsequent  execution  shall  issue.  If  the  whole  mortgage  is  not  due,  and  the  court 
ascertain  that  the  property  can  be  sold  in  parcels,  they  direct  so  much  only  to  be 
sold  as  will  be  sufficient  to  pay  the  amount  due,  and  the  judgment  shall  remain 
and  be  enforced  upon  any  subsequent  default.  Smith  v.  Pierce,  15  Ind.  210  ; 
Benton  v.  "Wood,  17  Ind.  260.  If  the  premises  cannot  be  sold  in  parcels,  the 
court  order  the  whole  to  be  sold,  and  the  proceeds  to  be  ajqdied,  first  to  the 
payment  of  the  part  due,  and  then  to  the  residue  secured  by  the  mortgage  and  not 
due.     Annot.  Rev.  Stat.  1894,  §  1109  ct  seq.     One  year  after  sale  is  allowed  to  re- 


2-40  MORTGAGES. 

deem  in.  Davis  v.  Langsdale,  41  Ind.  399.  It  is  not  competent  for  the  legislature, 
by  a  law  made  after  the  e.xecution  of  a  mortgage,  to  shorten  the  term  of  notice  of  a 
sale  required  by  law  at  the  date  of  such  mortgage.  Hopkins  v.  Jones,  22  Ind.  310, 
315. 

The  methods  of  foreclosure  in  Michigan  and  New  York  are  quite  similar.  In 
Michigan,  the  circuit  court  of  chancery  may  order  a  sale  of  the  mortgaged  premises 
after  one  year  from  the  filing  of  the  bill  of  foreclosure.  Detroit  F.  &  M.  I.  Co.  v. 
Renz,  33  Mich.  298.  In  the  States  above  named,  if  there  is  a  balance  of  the  mort- 
gage-debt unsatisfied  after  a  sale  of  the  premises,  in  case  such  balance  is  recoverable 
at  law,  the  court  may  issue  the  necessary  executions  against  other  property  of  the 
mortgagor,  or  other  party  assuming  or  liable  for  the  mortgage-debt.  Miller  v. 
Thompson,  34  Mich.  10.  But  this  is  not  a  part  of,  but  subsequent  to,  the  foreclosure. 
Gies  V.  Green,  42  Mich.  107.  No  proceedings  are  to  be  had  at  law  while  the  bill  is 
pending  ;  and  the  bill  is  to  state  whether  any  proceedings  have  been  had  at  law  for 
the  recovery  of  the  debt;  and  if  judgment  has  been  obtained  at  law,  no  proceedings 
are  to  be  had  unless  the  execution  is  returned  unsatisfied.  The  sale  is  by  a  master, 
commissioner,  or  officer  of  the  court,  who  executes  a  deed  and  applies  the  proceeds 
to  the  discharge  of  the  debt.  Mich.  Gen.  Stat.  1882,  §§  6684-6712  ;  N.  Y.  Code 
Civ.  Proc.  1883,  §§  1626-1637.  In  these  States,  also,  mortgages  containing  a 
power  of  sale  may  be  foreclosed  by  advertisement,  for  twelve  successive  weeks  after 
default,  provided  no  suit  or  proceeding  has  been  instituted  at  law,  or  that  execution 
in  such  suit  has  been  returned  unsatisfied,  and  provided  the  power  of  sale  or  the 
mortgage  containing  it  had  been  duly  recorded.  In  New  York,  such  sale  shall  be 
equivalent  to  a  foreclosure  in  equity,  so  far  as  to  be  an  entire  bar  to  the  mortgagor's 
equity  of  redemption,  N.  Y,  Code  Civ.  Proc.  §§  2387-2409.  In  Michigan,  the 
sale  in  such  case  is  made  by  the  sheriff,  who  executes  a  deed  to  be  operative  if  the 
premises  are  not  redeemed  within  one  year  by  the  payment  of  the  purchase-money 
with  interest  at  the  rate  borne  by  the  mortgage-note,  not  exceeding  ten  per  cent. 
Mich.  Gen.  Stat.  §§  3407-3507. 

In  Minnesota,  actions  for  foreclosure  of  mortgages  are  governed  by  the  same 
rules  as  civil  actions,  with  certain  exceptions,  and  judgment  is  entered  fixing  the 
amount  due,  and  directing  the  sheriff  to  sell  the  mortgaged  premises  ;  and  the 
court  may  issue  the  necessary  execution  against  the  other  property  of  the  mort- 
gagor; and  proceedings  may  be  stayed  or  dismissed  upon  the  defendant's  bringing 
into  court  the  principal  and  interest  due,  with  costs.  But  if  the  foreclosure  is  by 
advertisement,  the  mortgagor  has  one  year  within  which  to  redeem  the  estate. 
The  ordinary  mode  of  foreclosure  is  by  a  sale  of  the  premises,  or  so  much  as  is 
necessary  to  satisfy  the  debt,  which  is  done  by  the  sheriff  under  a  decree  of  the 
court.  Stat.  1891,  §  5380  et  seq.  Baldwin  v.  Allison,  4  Minn.  25.  But  it  is 
competent  for  the  court,  instead  of  this,-  to  decree  a  strict  foreclosure  in  favor  of  the 
mortgagee  ;  and  such  seems  to  be  the  law  in  Wisconsin.  Hey  ward  v.  Judd, 
4  Minn.  483,  492  ;  Pacer.  Chadderdon,  id.  499,  502;  Drew  v.  Smith,  7  Minn. 
301,  307  ;  Bean  v.  Whitcomb,  13  Wis.  431. 

In  Wisconsin,  mortgages  containing  a  power  of  sale  may  be  foreclosed  upon  de- 
fault in  a  manner  similar  to  that  above  mentioned.  The  mortgagor  may  redeem 
within  one  year,  during  which  time  he  may  retain  possession.  In  an  action  in  the 
court  of  chancery  for  the  foreclosure  of  a  mortgage,  the  defendant  shall  have  six 
months  to  answer  the  bill  or  complaint.  Six  months'  notice  shall  be  given  of  the 
sale.  When  the  action  is  brought  for  any  interest,  or  instalment  of  the  ])rincipal, 
aad  there  are  other  instalments  to  become  due  sub.->equently,  such  action  will  be 


OF   FORECLOSURE.  241 

dismissed  upon  payment,  before  order  of  sale,  of  the  portion  due  ;  if  payment  be 
made  after  the  order  is  entered,  the  proceedings  will  be  stayed,  to  be  enforced  by  a 
further  order  of  the  court  upon  a  subse([ueiit  default.  Wood  v.  Trask,  7  Wis.  566. 
It  is  also  provided  that  the  action  for  foreclosure  shall  be  brought  in  the  county 
where  the  lands  are  situated.  The  plaintiff  in  his  complaint  may  pray  for  a  judg- 
ment for  any  deficiency  which  may  remain  due  after  sale  of  the  mortgaged  premises, 
and  judgment  may  be  rendered  accordingly,  after  but  not  as  part  of  the  foreclosure. 
Welp  V.  Gunther,  48  Wis.  543.  A  surety  may  be  made  a  party  to  such  judgment, 
which  may  be  enforced  against  him  as  well  as  the  mortgagor  for  the  balance  remain- 
ing after  sale  of  the  mortgaged  premises.     Annot.  Stat.  1889,  §  3154  et  seq. 

In  Hew  Jersey  and  North  Carolina,  foreclosure  is  under  the  general  jurisdiction 
of  courts  of  equity.  Gen.  Stat,  of  New  Jersey,  1896,  p.  386,  §  76  ;  p.  2111,  §  42  ; 
Averett  v.  Ward,  Busbee's  Eq.  192  ;  Ingram  v.  Smith,  6  Ired.  Eq.  97. 

In  Kentucky,  judgment  may  be  rendered  for  a  deficiency,  as  well  as  for  fore- 
closure. Stat.  1894,  §  1661;  Chambers  v.  Keene,  1  Met.  (Ky.)  289.  And  there 
is  no  redemption  after  a  sale.  See  Downing  v.  Palmateer,  1  T.  B.  Mon.  64;  Martin 
V.  Wade,  5  T.  B.  Mon.  80  ;  Caufman  v.  Sayre,  2  B.  Mon.  202  ;  Crutchfield  v.  Coke, 
6  J.  J.    Marsh.  89. 

In  Maryland,  the  same  rules  prevail ;  and  in  a  suit  in  chancery  to  foreclose  a 
mortgage,  the  court  may  decree,  that,  unless  the  debt  and  costs  be  paid  by  the 
time  fixed  by  the  decree,  the  property  mortgaged,  or  so  much  of  it  as  may  be 
necessary,  shall  be  sold  ;  and  such  sale  shall  be  for  cash,  unless  the  complainant 
shall  consent  to  a  sale  on  credit.  Pub.  Gen.  Laws  1888,  art.  16,  §  187.  But  there 
may  also  be  a  strict  foreclosure. 

In  Mississqopi,  on  a  suit  for  foreclosure,  if  the  court  shall  think  the  complain- 
ant entitled  to  a  decree,  a  reference  may  be  made  to  the  clerk,  or  a  master,  to 
compute  the  amount  due,  who  shall  proceed  without  notice  to  the  parties,  and 
make  his  report  without  delay  ;  the  rejiort  shall  be  confirmed,  and  a  final  decree 
passed,  of  course,  unless  cause  be  shown  to  the  contrary.  Annot.  Code  1892, 
§§  591,  592.     There  is  no  redemption  after  a  sale. 

In  Ohio,  it  is  provided,  that,  in  the  foreclosure  of  a  mortgage,  a  sale  of  the 
mortgaged  property  shall  in  all  cases  be  ordered ;  and  when  the  same  mortgage 
embraces  separate  tracts  of  land,  situated  in  two  or  more  counties,  the  sheriff 
of  each  county  shall  be  ordered  to  make  sale  of  the  lands  situated  in  his  county  ; 
and  in  making  sale,  the  court  may  order  it  to  be  sold  in  yjarcels  or  entire. 
Rev.  Stat.  1896,  §  5316.  In  actions  for  foreclosure,  the  plaintiff  may  ask  also  a 
judgment  for  money.     Ibid.   §   5021. 

In  Tennessee,  when  land  is  sold  under  a  decree  of  a  court  of  chancery  upon  a 
foreclosure,  the  mortgagor  may  redeem  within  two  j-ears  after  such  sale,  unless  upon 
a])plication  of  the  complainant  the  court  order  that  the  property  be  sold  on  a 
credit  of  not  less  than  six  months  nor  more  than  two  years  ;  and  that,  upon  con- 
firmation thereof  by  the  court,  no  right  of  redemption  or  re-purchase  shall  exist  in 
the  debtor  or  his  creditor,  but  that  the  title  of  the  purchaser  shall  be  absolute. 
Code  1896,  §  3811. 

In  Connecticut  and  Vermont,  a  strict  foreclosure  is  decreed  in  a  court  of  chan- 
cery, whereby  the  title  becomes  absolute  in  the  mortgagee,  on  the  failure  of  the 
mortgagor  to  redeem  within  the  time  allowed  by  the  decree.  In  the  former  State 
foreclosure  may  also  be  by  sale  of  the  premises.  A  petition  to  foreclose  the  mort- 
gage may  be  instituted  against  the  heirs  and  creditors  of  a  deceased  mortgagor  by 
general  description.     A  foreclosilre  prevents  any  further  recovery,  unless  the  per- 

VOL.    II.  — 16 


242  MORTGAGES. 

sons  liable  are  made  parties  to  the  foreclosure  proceedings.  Whenever  any  mortgace 
has  been  foreclosed,  and  the  time  limited  by  the  court  for  redemjitioa  has  jiassed, 
the  mortgagee,  or  person  in  whom  such  title  has  become  absolute,  shall  forthwith 
make  a  certiticate  describing  the  premises,  the  mortgage,  the  record  of  the  same, 
and  the  time  when  the  title  became  absolute  ;  winch  certiticate  shall  be  signed  by 
the  party,  and  recorded  in  the  town  where  the  projierty  is  situated.  lu  case  of 
foreclosure  by  a  party  not  having  the  legal  right  to  the  land,  but  who  is  entitled  to 
the  money  secured  by  the  mortgage,  the  title  vests  after  the  right  of  redemption 
has  expired,  upon  the  recording  of  the  decree.  Parties  acquiring  interest  pendente 
lite  are  not  bound,  unless  public  record  has  been  made  of  the  proceeding  to  fore- 
close. Gen.  Stat.  Conn.  c.  186.  In  Vermont,  if  the  premises  are  not  redeemed 
agreeably  to  the  decree  of  foreclosure,  the  clerk  of  the  court  of  chancery  may  is^sue 
a  writ  of  possession  to  put  the  complainant  in  possession  of  the  premises.  Such 
foreclosure  is  not  effectual  as  against  subsequent  purchasers,  mortgagees,  or  attach- 
ing creditors,  unless  a  copy  of  the  record  or  decree  of  foreclosure  is  recorded  in  the 
town  clerk's  office  where  the  land  is  situated,  within  thirty  days  after  the  expiration 
of  the  time  of  redemption.  Stat.  1894,  §§  978,  979.  Any  subsequent  attaching 
creditor  may  now  be  joined  as  defendant  in  proceedings  to  foreclose  a  mortgage. 
§  972.     In  certain  cases,  also,  foreclosure  may  be  by  ejectment.     §  1497. 

In  Missouri,  petitions  to  foreclose  mortgages  are  filed  in  the  circuit  court  of  the 
county  where  the  real  estate  is  situated,  against  the  mortgagor  and  the  actual 
occuj)iers  of  such  real  estate  ;  and  any  person  claiming  an  interest  in  the  mort- 
gaged property  may,  on  motion,  be  made  defendant.  Summons  shall  issue  as 
in  ordinary  civil  actions.  When  the  mortgagor  is  not  summoned,  but  notified  by 
publication,  and  has  not  appeared,  the  judgment,  if  for  the  plaintiff,  shall  be,  that 
he  recover  the  debt  and  costs,  to  be  levied  on  the  mortgaged  property.  But 
if  summoned,  or  appearing,  such  judgment  shall  be  rendered  with  the  additions, 
that  if  the  mortgaged  property  be  not  sufficient  to  satisfy  the  debt  and  costs,  then 
the  residue  shall  be  levied  on  other  property  of  the  mortgagor.  A  special  fieri 
facias  issues  in  conformity  to  the  judgment  uj)on  which  the  property  is  sold  by 
the  sheriff  of  the  county.  There  is  no  redemption  after  sale  by  any  party  to  the 
proceeding.  Rev.  Stat.  1899,  §  4342  et  seq.  A  proceeding  under  the  statute  is 
had  at  law,  and  is  not  governed  by  the  rules  of  equity  ;  but  a  party  may  foreclose 
by  bill  in  equity,  Riley  v.  McCord,  24  Mo.  265  ;  or  under  power  of  sale,  §  4-356. 

In  Texas,  under  all  judgments  or  decrees  for  the  foreclosure  of  mortgages  against 
persons  other  than  executors  or  administrators,  an  order  of  sale  shall  issue  to  the 
sheriff  of  the  county  where  the  property  subject  to  such  lien  or  mortgage  can  be 
found,  directing  him  to  sell  the  same,  if  found,  as  under  execution  ;  and  if  the  pro- 
ceeds of  such  sale  be  insufficient  to  pay  the  judgment  and  costs,  or  if  the  propeiiy 
cannot  be  found,  further  execution  may  be  issued  for  such  balance  or  for  the  debt, 
against  such  defendant,  as  the  case  may  be.  The  action  is  in  the  district  court. 
Batts'  Annot.  Civ.  Stat.  §  1340  et  seq.  This  mode  of  foreclosure  does  not  exclude 
powers  of  sale.     Morrison  v.  Bean,  15  Tex.  267,  269. 

In  Iowa,  no  mortgage  may  be  foreclosed  in  any  other  manner  than  by  action  in 
court  by  equitable  proceedings,  even  if  there  is  a  power  of  sale.  Upon  judgment, 
the  court  issue  a  special  execution  for  the  sale  of  the  mortgaged  property  ;  but  if 
this  does  not  sell  for  enough  to  satisfy  the  execution,  a  general  execution  may  be 
issued  against  the  mortgagor  or  party  who  has  assumed  the  mortgage.  Bowen  v. 
Kurtz,  37  Iowa,  239.  If  the  premises  consist  of  several  parcels,  they  must,  if 
distinct,  be  sold  separately  and  not  in  a  lurnp,  and  only  enough  of  them  to  satisfy 


OF   FORECLOSURE.  243 

the  debt.  Boyd  v.  Ellis,  11  Iowa,  97  ;  Maloney  v.  Fortune,  14  Iowa,  417.  There 
is  the  same  period  of  redemption  allowed  the  mortgagor,  or  any  person  having  a 
lien  on  the  premises,  as  is  provided  in  case  of  real  estate  sold  on  general  execution. 
Wilson  V.  Wilson,  4  Iowa,  309,  312  ;  Code  1897,  §§  3428,  4287  ei  seq. 

In  Kansas,  it  is  })rovided  that  mortgages  shall  be  foreclosed  by  petition  in  the 
district  court  of  the  county  in  wliich  the  real  estate  is  situated,  which  is  an  equi- 
table proceeding.  Deeds  of  trust  are  deemed  mortgages  so  far  as  the  method  of 
foreclosure  is  concerned.  A  sale  of  the  mortgaged  property  can  only  be  made 
in  pursuance  of  a  judgment  of  a  court  of  competent  jurisdiction  ordering  such 
sale.  Gen.  Stat.  1897,  c.  95,  §  396.  There  is  no  redemption  after  sale.  Kirby  v. 
Childs,  10  Kan.  639. 

In  Delaware,  upon  breach  of  the  condition,  a  writ  of  scire  facias  may  be  sued 
out ;  and,  upon  the  entry  of  judgment  for  the  plaintiff,  he  may  have  execution 
against  the  premises  by  levari  facias,  under  which  they  are  sold ;  or,  if  there  be 
no  sale  for  want  of  bidders,  a  liberari  facias  may  issue,  under  which  so  much  of 
the  mortgaged  premises  are  set  off  by  appraisement  as  shall  satisfy  the  debt  and 
costs.     Laws  1893,  c.  Ill,  §§  .'.5-60. 

In  Pennsylvania,  after  the  expiration  of  twelve  mouths  from  the  breach  of  the 
condition  of  a  mortgage,  the  mortgagee,  or  any  one  claiming  under  him,  may  sue 
out  a  writ  of  scire  facias  from  the  court  of  common  pleas  for  the  county  where  the 
mortgaged  lands  lie.  The  action  is  in  rem ;  but  all  defences  are  open  to  the 
mortgagor.  Mevey's  Appeal,  4  Penn.  St.  80.  If  the  mortgagee  obtains  judgment, 
he  may  have  execution  by  levari  facias,  by  virtue  whereof  the  mortgaged  premises 
are  taken  on  execution,  and  exposed  to  sale  as  in  case  of  other  sales  on  executioir ; 
but,  for  want  of  purchasers,  they  are  delivered  to  the  mortgagee  or  creditor.  Prior 
parties  are  not  affected.  Helfrich  v.  Weaver,  61  Penn.  St.  385.  There  is  no 
redemption,  and  the  pnrcTiaser's  title  is  not  affected  by  any  revei'sal  of  judgment. 
Pepper  &,  Lewis'  Dig.  1598.  As  to  chancery  jurisdiction  in  case  of  corporation 
mortgages,  see  McCurdy's  Appeal,  65  Penn.  St.  290. 

In  Nebraska,  on  petitions  to  foreclose,  the  court  may  decree  sales  of  the  estates, 
and,  upon  a  report  made  of  sale  may  issue  execution  against  other  property  of  the 
mortgagor  for  the  balance  unsatisfied.  But  no  proceedings  can  be  had  pending 
the  petition  and  decree,  unless  authorized  by  the  court.  The  sherifTs  deed  vests 
in  the  purchaser  the  same  estate  that  would  be  in  the  mortgagee  if  the  equity  of 
redemption  had  been  foreclosed.  In  other  respects  the  proceedings  are  much  the 
same  as  in  Micliigan.     Comp.  Stat.  1899,  §  6366  et  seq. 

In  N'ew  Jersey,  besides  the  method  of  foreclosure  in  chancery  in  all  suits  for  the 
foreclosure  and  sale  of  mortgaged  premises,  where  all  the  mortgaged  premises  are 
situated  in  the  same  county,  the  circuit  court  of  said  county  shall  have  the  same 
jurisdiction  and  powers  as  the  court  of  chancery  in  like  cases.  Sale,  when  ordered, 
is  made  by  a  court  officer,  who  gives  the  deed.  There  is  no  redemption.  A  sale 
may  be  only  of  a  parcel,  if  divisible,  and  the  whole  debt  is  not  due.  No  deficiency 
judgment  is  allowed,  but  suit  is  upon  the  bond  for  balance  unsatisfied  by  fore- 
closure. Gen.  Stat.  1895,  pp.  385,  2111;  or  in  equity  against  the  party  assuming 
the  mortgage,  Allen  v.  Allen,  34  N.  J.  Eq.  493. 

In  Illinois,  if  default  be  made  in  the  payment  of  any  sum  of  money  secured  Viy 
mortgage  on  real  property,  and  if  the  payment  be  by  instalments,  and  the  last  shall 
have  become  due,  the  remedy  of  scire  facias  may  be  had  at  law  on  the  mortgage. 
Tlie  lands  are  sold  to  satisf}'  the  debt,  subject  to  the  same  right  of  redemption  as 
upon  execution,      Comp.  Laws  1857,  p.  976;  Rev.  Stat.  1880,  c.  90,  §§  17-19. 


244  MORTGAGES. 

Where  a  bill  for  a  foreclosure  shows  that  the  mortgage  was  given  for  the  entire 
purchase-money,  no  part  of  which  has  been  paid,  and  the  premises  are  but  a  slender 
and  the  only  security  for  the  debt,  the  mortgagors  having  absconded,  a  strict  fore- 
closure is  proper.  Wilson  v.  Geisler,  19  111.  49 ;  Young  v.  Graff,  28  111.  20,  29  ; 
Rev.  Stat.  1874,  c.  95,  §  17.  Foreclosure  may  be  niade  by  sale  by  a  sherilf,  under 
a  power.  Rev.  Stat.  1880,  §§  11,  14,  15.  When  it  is  in  equity,  a  decree  for  the 
deliciency  may  be  made.     Ibid.  §  16. 

In  Maine,  New  Hampshire,  Massachusetts,  and  Ehoclc  Island,  mortgages  may  be 
foreclosed  by  entiy  into  the  mortgaged  premises  under  process  of  law,  or  by  entry 
in  pais,  openly  and  peacefully  made;  and  such  possession  obtained  in  either  mode, 
continued  peacefully  for  a  certain  period,  will  forever  foreclose  the  right  of  redemp- 
tion. This  period  of  possession  is  three  years,  except  in  New  Hampshire,  where  it 
is  one  year.  In  Maine,  Massachusetts,  and  Ehodc  Island,  the  entry  must  be  made 
in  the  presence  of  two  witnesses,  and  verified  by  their  affidavit,  and  duly  recorded ; 
and  in  the  latter  State  such  witnesses  shall  give  to  the  mortgagee,  or  other  person 
taking  possession  under  him,  a  certificate  of  such  possession  being  taken  ;  and  the 
person  delivering  possession  shall  acknowledge  the  same  to  have  been  voluntarily 
done,  before  a  justice  of  the  peace  ;  which  certificate  and  acknowledgment  shall 
be  recorded  in  the  clerk's  office  of  the  town  where  such  mortgaged  estate  lies.  In 
Maine,  the  mortgagee  may  also  enter  into  possession  of  the  premises,  and  hold  the 
same  by  consent  in  writing  of  the  mortgagor  or  person  claiming  under  him  ;  and  in 
Massachusetts,  a  memorandum  or  certificate  of  the  entry  may  be  made  on  the 
mortgage-deed,  and  signed  by  the  mortgagor  or  the  person  claiming  under  him,  and 
recorded.  In  Maine  and  Massachusetts,  in  an  action  for  possession,  if  the  plaintiif 
is  entitled  to  possession,  and  the  defendant  is  the  mortgagor  or  his  assignee,  or  one 
entitled  to  hold  under  him,  the  court,  on  motion  of  either  party,  award  a  condi- 
tional judgment,  that  if  the  defendant  shall  within  two  months  pay  the  sum  found 
due  on  the  mortgage,  with  interest  and  costs,  the  mortgage  shall  be  void  ;  other- 
wise that  the  plaintiff"  shall  have  execution  for  possession  and  for  costs  of  suit. 
This  writ  of  entry  is  so  far  like  a  bill  in  equity,  that  the  court  determine  what  is 
due  upon  the  mortgage  by  the  rules  of  equity.  Holbrook  v.  Bliss,  9  Allen,  69  ; 
Hart  V.  Goldsmith,  1  Allen,  145,  147;  Cronin  v.  Hazletine,  3  Allen,  324;  Kil- 
born  V.  Robbins,  8  Allen,  466,  472.  In  such  case,  the  mortgage  may  be  redeemed 
within  three  years. 

In  Maine,  foreclosure  may  also  be  effected  by  a  public  notice  in  the  State  paper, 
and  a  record  of  the  same  in  the  registry  of  deeds  ;  or  by  causing  an  attested  copy 
of  such  notice  to  be  served  upon  the  mortgagor  or  his  assignee,  and  recording  the 
same  ;  and  in  such  case,  if  the  mortgagor,  or  person  claiming  under  him,  does  not 
redeem  within  three  years  after  the  first  publication,  or  service  of  the  notice,  his  right 
of  redemption  shall  be  forever  foreclosed.  In  New  Hampshire,  a  notice  of  the  pos- 
session, the  object  of  it,  and  a  description  of  the  mortgage  and  of  the  premises, 
must  be  published  in  some  newspaper,  the  first  publication  to  be  six  months  before 
the  time  of  foreclosure.  And  if  the  mortgagee  be  in  possession,  foreclosure  is 
effected  by  publication  in  a  newspaper  of  a  notice,  stating  that  from  and  after  a 
certain  day  specified,  and  not  more  than  four  weeks  after  the  last  day  of  publication, 
such  possession  will  be  holden  for  the  purpose  of  foreclosing  the  right  to  redeem  the 
same  for  condition  broken,  and  by  retaining  actual  peaceable  possession  of  the  prem- 
ises for  one  year  from  and  after  the  day  specified  in  such  notice.  Pub.  Stat.  1901, 
c.  139.  In  Rhode  Island,  any  person  also  entitled  to  foreclose  may  prefer  a  bill  to 
foreclose  in  the  supreme  court  sitting  in  the  county  in  which  the  premises  are  situ- 


OF    FORECLOSURE.  245 

ateJ  ;  which  bill  may  be  hoard,  tried,  and  determined  according  to  the  usages  in 
chancer}'  and  the  principles  of  equity.  See  Maine,  Rev.  Stat.  1883,  c.  90  ;  Massa- 
chusetts, Pub.  Stat.  c.  181  ;  Rhode  Island,  Gen.  Laws,  1896,  c.  207. 

The  statute  of  Massachusetts,  as  to  foreclosure  of  mortgages,  applies  only  to 
legal  mortgages.  Wyman  v.  Babcock,  2  Curtis,  C.  C.  386.  An  entry  on  a  jiart  of 
the  land  mortgaged  by  one  general  description,  followed  by  three  years'  possession, 
forecloses  the  whole  land.  Lennon  v.  Porter,  5  Gray,  318.  So  an  entry  on  one  of 
two  separate  tracts  of  land,  both  situated  in  the  same  county,  and  mortgaged  by  the 
same  deed,  on  the  same  condition,  is,  as  between  the  parties  and  their  privies,  an 
entry  on  the  whole.  Bennet  v.  Conant,  10  Cash.  163  ;  Hawkes  v.  Brigham,  16  Gray, 
561,  565.  A  mortgagee  does  not,  by  bringing  a  writ  of  entry  to  foreclose  and  obtain- 
ing a  conditional  judgment,  waive  his  right  to  take  possession  of  the  land  during 
the  two  months  allowed  to  the  mortgagor  to  pay  the  amount  ascertained  by  the  judg- 
ment to  be  due.  Mann  v.  Earle,  4  Gray,  299.  A  second  mortgagee  of  laud  may 
enter  and  take  possession  for  the  purpose  of  foreclosure  while  the  first  mortgagee  is 
in  for  the  like  purpose  ;  and,  if  the  second  mortgage  is  foreclosed  before  the  first, 
such  foreclosure  will  cut  off  the  equity  of  redemption  of  that  mortgage  and  all  sub- 
sequent mortgage-rights,  though  such  mortgages  are  held  by  the  first  mortgagee. 
Palmer  v.  Fowley,  5  Gray,  545.  That  a  mortgagee  buying  at  the  foreclosure  sale 
pays  the  debt  pro  tanto,  though  he  refuses  to  execute  the  deed,  see  Hood  v.  Adams, 
124  Mass.  481  ;  Muhliz  v.  Fiske,  131  Mass.  110. 


246  INCORPOREAL   HEREDITAMENTS. 


CHAPTER   LIT. 

INCORPOREAL    HEREDITAMENTS. 

§  1185.  General  nature  of  incorporeal  hereditaments. 

1186.  Incorporeal  hereditaments  in  the  United  States. 

1187.  Eents  defined. 

1188.  Rent  service. 

1189.  Rents  charge,  rents  seek,  fee-farm  rents. 

1190.  Rents  service  in  the  United  States. 

1191.  Rents,  how  created. 

1192.  Estates  in  rents. 

1193.  Curtesy  and  dower  in  rents. 

1194.  Purposes  for  which  rents  created. 

1195.  Fee-farm  rents  unusual  in  this  country. 

1196.  Remedy  for  recovering  rents  —  Distress. 

1197.  Recovery  by  action. 

1198.  When  grantor  may  take  and  hold  possession. 

1199.  The  form  of  action. 

1200.  Liability  of  assignee  of  the  land. 

1201.  Distinction  between  rent  reserved  and  one  granted. 

1202.  Covenants  for  rent  running  with  the  land. 

1203.  Privity  of  estate  required. 

1204.  Privity  of  estate  defined. 

1205.  Covenants  running  with  land  further  considered. 

1206.  Covenant  for  rent  not  assignable  after  due. 

1207.  Apportioning  rents. 

1208.  Apportioning  rents,  continued. 

1209.  Apportionment  as  to  time. 

1210.  Escheat  —  Extinguishment. 

1211.  Merger. 

§  1185.  General  Nature  of  Incorporeal  Hereditaments.  —  Thus 
far,  the  subjects  treated  of  in  this  work  have  referred  chiefly 
to  property  of  a  corporeal  nature,  —  something  of  which  livery 
of  seisin  might  be  made.  The  property  now  to  be  spoken  of 
consists  of  an  intangible,  incorporeal  interest  in,  or  right  to,  or 
out  of,  lands  and  tenements,  of  a  nature  sufficiently  permanent 
to  have  applied  to  it  the  same  idea  of  duration  or  quantity  of 
ownership  or  estate  as  has  thus  far  been  applied  to  corporeal 
inheritances.    Thus  A  may  have  an  estate  in  possession  in 


INCORPOREAL    HEREDITAMENTS.  247 

lands  during  his  life ;  B  may  have  a  riglit  to  these  on  A's 
death,  or  may  have  it  upon  condition  that  he  survives  A,  or 
that  A  die  without  children.  But  he  cannot  touch  or  handle 
this  interest ;  and  if  he  sells  it,  he  can  only  pass  it  hy  deed, 
since  he  has  no  present  seisin  which  he  can  deliver  to  the  pur- 
chaser. Here  A  has  a  corporeal  and  B  an  incorporeal  property 
in  the  same  land ;  though  B's  interest  in  such  a  case,  so  far 
as  it  is  a  reversion  or  a  vested  remainder,  is  considered  as  of 
a  mixed  nature,  at  one  time  incorporeal,  but  capable  of  becom- 
ing corporeal  by  being  united  with  the  possession  at  the  death 
of  A}  Hereditaments  may,  on  the  other  hand,  be  purely  in- 
corporeal, as,  for  example,  what  are  called  rights  of  common, 
or  rights  of  way  appurtenant  to  other  lands.  Thus  A  may 
own  Blackacre,  and  have  a  right  to  go  upon  B's  adjacent  land 
to  cut  trees  to  burn  on  his  own,  or  to  pass  across  B's  land  to 
reach  his  own.  Now,  this  is  simply  a  right  which  he  cannot 
sell  and  deliver  over  to  a  stranger  separate  from  the  land  to 
which  it  is  appendant,  — nothing,  in  other  words,  corporeal  or 
tangible.  And  yet  it  may  be  an  inheritable  right,  which 
will  survive  to  his  heirs,  and  in  wh-ich  he  may  have  an  es- 
tate in  fee-simple  ;  or  it  may  be  for  his  life  only,  in  which 
case  he  would  have  a  life-estate  in  it,  in  the  same  manner  as 
he  might  have  in  corporeal  property.  But  in  no  event  can 
an  incorporeal  hereditament  like  this  become  a  corporeal 
one. 2  Property  like  this  is  not,  properly  speaking,  regarded 
as  a  tenement,  nor  is  it  land;  but  being  something  that  is 
of  a  permanent  nature,  and  may  be  inherited,  it  is  called  a 
hereditament.^ 

§  118G.  Incorporeal  Hereditaments  in  the  United  States.  — 
Blackstone  enumerates  ten  of  the  purely  incorporeal  heredita- 
ments. But  as  neither  tithes,  advowsons,  commons,  as  under- 
stood in  England,  offices,  dignities,  corodies,  nor  pensions,  are 
known  to  the  American  law  as  things  of  which  an  estate  can  be 

1  Wms.  Real  Prop,  197. 

2  Wras.  Real  Prop.  265. 

8  2  Bl.  Com.  17  ;  Prest.  Est.  13,  14.  Burton,  however,  in  his  Compendium, 
applies  the  term  "tenement"  to  incorporeal  as  well  as  corporeal  hereditaments. 
Burt.  Real  Prop.  §§  4,  40  ;  Van  Rensselaer  v.  Read,  26  N.  Y.  558,  566  ;  Van 
Rensselaer  v.  Platner,  2  Johns.  Cas.  24,  26. 


248  INCORPOREAL    HEREDITAMENTS. 

predicated,^  and  as  annuities  are  but  claims  of  a  personal  nature,^ 
—  and  this  rule  still  appears  to  be  applied  in  Pennsylvania,  where 
the  statute  Quia  Emptores  has  never  been  adopted,^ —  the  only 
classes  of  incorporeal  real  property  of  which  it  is  now  proposed 
to  treat  are  rents,  franchises,  and  easements. 

§  1187.  Rents  defined.  —  Rent  is  defined  to  be  a  right  to 
the  periodical  receipt  of  money  or  money's  worth  in  respect  of 
lands  which  are  held  in  possession,  reversion,  or  remainder,  by 
him  from  whom  the  payment  is  due.*  As  technically  defined, 
it  is  something  which  a  tenant  renders  out  of  the  profits  of  the 
lands  or  tenements  which  he  enjoys.^ 

§  1188.  Rent  Service.  —  There  was,  before  the  statute  of 
Quia  Emptores,  a  custom  for  the  owner  of  the  feud,  on  parting 
with  his  entire  estate,  to  reserve  something  to  himself  and  his 
heirs  by  way  of  perpetual  periodical  service,  or  an  equivalent 
thereto,  by  way  of  rent  or  return ;  upon  a  failure  to  perform 
which  on  the  part  of  the  tenant,  the  owner  of  the  rent  might 
distrain  for  the  same.  This  right  of  distress  grew  out  of  the 
tenure  existing  between  the  grantor  and  tenant,  the  latter 
owing  fealty  as  well  as  rent  for  the  estate.  This  periodical 
render  was  called  a  rent  service.  But  as  the  statute  of  Quia 
Emptores  abolished  all  tenure  between  a  grantor  in  fee  and 
his  grantee,  by  destroying  the  possibility  of  reversion,  it  oper- 
ated to  extinguish  the  fee  in  the  owner  of  such  a  rent.^  But 
when  there  is  a  reversion,  as  fealty  is  always  due  from  the 
tenant  to  the  reversioner,  a  rent  from  a  tenant  for  years  to  his 
reversioner  is  still  a  good  rent  service,  and  was  treated  of  ac- 
cordingly, under  the  head  of  Estates  for  Years.' 

^  By  a  law  of  Massachusetts  in  1660,  no  cottage  or  dwelling-house  was  to  be 
admitted  to  the  privilege  of  commonage  for  wood,  timber,  and  herbage,  except  "  by 
consent  of  the  town."  See  Col.  Laws,  196  ;  Thomas  v.  Marshfield,  10  Pick. 
364,  367. 

2  Wins.  Pers.  Prop.  165. 

8  Wallace  v.  Harmstad,  44  Penn.  St.  492,  496,  498. 

*  Burt.  Real  Prop.  §  1050. 

6  Co.  Lit.  142  a  ;  Watk.  Conv.  273. 

6  Smith,  Land.  &  Ten.  90 ;  3  Prest.  Abst.  54  ;  Burt.  Real  Prop.  §§  1053,  1054  ; 
Van  Rensselaer  v.  Read,  26  N.  Y.  563  ;  Wallace  v.  Harmstad,  44  Penn.  St.  495, 
498. 

'  Smith,  Land  &  Ten.  90 ;  Com.  Dig.  Rent,  c.  1  ;  ante,  §  605 ;  Com.  Land.  & 
Ten.  97. 


INCORPOREAL    HEREDITxVMENTS.  249 

§  1189.  Rents  Charge,  Rents  Seek,  Fee-farm  Rents.  —  It  is 
not  of  rent  service,  as  above  explained,  that  it  is  proposed  to 
treat  in  this  chapter,  but  of  rents,  which,  from  their  duration 
and  transmissible  and  inheritable  quality,  come  under  the 
proper  designation  of  incorporeal  hereditaments.  These  are 
rents  charge  and  rents  seek,  or  what  answer  in  many  cases  to 
both  of  them, fee-farm  rents.^     "There  are,"  say  the  court  in 

V.  Cooper,  two  ways  of  creating  a  rent :  the  owner  either 

grants  a  rent  out  of  it,  or  grants  the  lands,  and  reserves  a 
rent.  There  is  no  such  thing  as  a  rent  seek,  rent  service,  or 
rent  charge,  issuing  out  of  a  term  for  years."  ^  Thus,  if  an 
owner  of  land  in  fee  grants  it  to  another  in  fee,  and  in  his 
deed  reserves  an  annual  sum  of  money,  or  something  money's 
worth,  to  be  paid  by  the  grantee  or  his  heirs  or  assigns  to  him 
and  his  heirs,  or  if,  being  owner  in  fee  of  the  land,  he  grants 
to  another  and  his  heirs  an  annual  sum  to  issue  out  of  his 
said  lands  for  ever,  these  annual  payments  thus  granted  or 
reserved  are  called  rents,  although  not  strictly  anything  in  the 
way  of  profits  reserved  or  to  be  rendered  out  of  the  thing 
granted.^  For  this  reason,  while  the  common  law  gave  to  the 
reversioner,  in  case  of  a  rent  service,  the  remedy  of  distress 
for  its  recovery  if  unpaid,  there  was  no  such  right  attached  to 
rents  granted  or  reserved  as  above  supposed,  unless.it  was  so 
stipulated  in  the  deed  or  indenture  by  which  the  rent  was 
created.  If  the  owner  of  the  rent  was  empowered,  at  its  crea- 
tion, to  enforce  its  payment  by  distress,  it  was  considered  as 
charged  upon  the  land,  and  therefore  called  a  rent  charged 
If  no  right  of  distress  was  attached  to  the  rent  at  its  creation, 
it  was  called  a  rent  seek  (siccus),  or  dry  rent,  being  a  mere 
right  to  recover  the  rent,  without  any  right  to  seize  upon  the 
property  out  of  which  it  was  supposed  to  issue  or  be  derived.^ 
By  the  statute  4  Geo.  II.  c.  28,  §  5,  a  right  of  distress,  whether 
for  rent  seek  or  rent  charge,  was  given,  so  that,  by  the  English 

1  3  Prest.  Abs.  54. 

^  V.  Cooper,  2  Wils.  375  ;  Langford  v.  Selines,  3  Kay  &  J.  220,  229.     See 

5  Bligh,  N.  s.  63. 

8  Watk.  Coiiv.  273,  Coventry's  note,  276-278  ;  3  Prest.  Abst.  55. 

*  2  Bl.  Com.  42  ;  Cornell  v.  Lamb,  2  Cow.  652,  659. 

5  Wms.  Real  Prop.  270;  2  Bl.  Com.  42  j  Cornell  v.  Lamb,  2  Cow.  652,  659; 
Wallace  v.  Harmstad,  44  Penn.  St.  495,  498. 


250  INCORPOREAL   HEREDITAMENTS. 

laws,  the  distinction  between  the  two  is  substantially  abro- 
gated.i  *  In  New  York,  a  rent  reserved  upon  a  conveyance  in 
fee  is  a  rent  charge,  and  not  a  rent  service.^ 

§  1190.  Rents  Service  in  the  United  States.  —  If  in  any  of  the 
States  the  statute  of  Quia  Emptores  has  not  been  ado[)ted  as  a 
part  of  their  common  law,  rents  service  in  fee  as  well  as  for 
terms  of  years  may  still  be  in  use.  This  is  the  case  in  Pennsyl- 
vania, and  many  cases  have  arisen  there  where  the  rent  granted 
or  reserved  was  in  fee,  and,  if  reserved,  has  been  held  to  be  a 
rent  service,  and  not  a  rent  charge,  and  where,  as  was  the  case 
at  common  law,  a  release  of  a  part  of  the  land,  out  of  which  the 
ground  rent  which  had  been  thus  reserved  issued,  discharged 
the  rent  pro  rata  only.^ 

§  1191.  Rents,  how  created.  —  The  nature  and  general  inci- 
dents of  the  rents  mentioned,  regarded  as  interests  in  land 
of  which  estates  may  be  predicated,  are  so  nearly  identical 
(except  in  the  matter  of  enforcing  them),  that  it  is  proposed 
to  consider  rents  charge  and  seek  together  under  the  term  of 
fee-farm  rents.  These  rents  may  be  created  by  reservation,  by 
limitation  of  a  lease,  or  by  grant,*  by  bargain  and  sale,  lease 
and  release,  or  covenant  to  stand  seised,^  which,  as  the  reader 
will  hereafter  see,  is  substantially  saying,  in  any  form  of  con- 
veyance by  which  lands  themselves  may  be  conveyed.  Where 
a  rent  is  granted,  it  is  itself  the  subject  of  the  grant :   where  it 

*  Note.  —  There  was,  under  the  feudal  law,  what  was  called  a  quit-rent,  which 
was  a  fixed  sum  payable  to  the  lord  as  seignior  of  a  manor,  by  a  tenant,  upon  a 
composition  made  with  the  lord,  who  gave  up  therefor  his  claim  for  indefinite 
services  due  from  the  tenant.  2  BI.  Com.  96  ;  Marshall  v.  Conrad,  5  Call,  364, 
398. 


1  Wms.  Real  Prop.  270,  n. 

2  Van  Rensselaer  v.  Hays,  19  N.  Y.  68  ;  Van  Rensselaer  v.  Chadwick,  22  N.  Y. 
32  ;  Van  Rensselaer  v.  Smith,  27  Barb.  104,  134,  139;  Tyler  v.  Heidorn,  46  Barb. 
439,  449,  where  there  is  a  summary  of  the  various  points  made  and  ruled  in  the 
Van  Rensselaer  cases  in  New  York. 

8  IngersoU  v.  Sergeant,  1  Whart.  337,  where  the  subject  is  very  elabo- 
rately examined.  Franciscus  v.  Reigart,  4  Watts,  98,  116 ;  2  Sharsw.  Bl.  Com. 
42,  n.  J  Wallace  v.  Harmstad,  44  Penn.  St.  495.  The  statute  of  Quia  Emptores 
forms  a  part  of  the  common  law  of  New  York.  Van  Rensselaer  v.  Hays,  19 
N.  Y.  68. 

*  3  Prest.  Abst.  53. 

6  Watk.  Conv.  231 ;  3  CruUe,  Dig.  273. 


INCORPOREAL   HEREDITAMENTS.  251 

is  reserved,  it  is  the  lands  that  are  the  subject  of  the  grant, 
and  the  rent  comes  in  lieu  of  the  land. 

§  1192.  Estates  in  Rents.  — The  estate  in  the  rent  may  be  a 
fee-simple,  a  fee-tail,  for  life,  or  for  years.  To  constitute  a  fee- 
simple,  the  rent  must  be  reserved  to  the  grantor,  his  heirs 
and  assigns ;  or,  if  granted,  by  like  words  of  inheritance.  If 
for  years,  it  may  be  to  one  without  words  of  limitation,  or, 
as  is  often  done,  to  one  and  his  executors,  administrators, 
and  assigns.  So  the  limitation  may  be  to  one  in  tail,  with 
remainders  over.^  The  rent  must,  if  created  by  reservation, 
be  reserved  for  the  feoffor,  donor,  or  lessor,  and  not  to  a 
strauger,2  and  this  may  be  by  deed  poll.^  But  it  may  be  created 
by  grant  to  a  stranger.*  A  rent  reserved  upon  a  lease  in  fee, 
with  a  clause  of  distress,  is  such  an  interest  in  land  as  may  be 
levied  upon  for  the  debt  of  him  who  owns  it ;  though,  it  seems, 
if  it  had  been  a  rent  seek,  it  would  not  be  the  subject  of  such 
a  levy.^  When  a  rent  has  been  once  granted  or  created,  it  is 
itself  a  subject  of  grant  afterwards  like  other  estates,^  and  is 
descendible  to  heirs.'^  It  may  be  granted  to  one  for  life,  with 
remainder  over  to  another,^  though  at  common  law  an  existing 
rent  cannot  be  granted  to  take  effect  in  futuro.  But  rents  are 
expressly  included  in  the  statute  of  uses,  27  Henry  VIII. 
c.  10,  and  may  be  conveyed  to  uses  like  land  itself,  as  will  be 
explained  hereafter.^ 

§  1193.  Curtesy  and  Dower  in  Rents.  —  Such  a  rent  is  subject 
to  curtesy  or  dower  like  lands  held  in  fee-simple  or  fee-tail,^*' 
the  requisite  seisin  being  a  seisin  in  law,  as  there  can  be  none 
in  fact.  And  for  that  reason,  where  one  has  been  once  seised 
or  possessed  of  a  rent,  he  cannot  be  disseised,  as  the  possession 

1  Van  Rensselaer  v.  Hays,  19  N.  Y.  68  ;  Watk.  Conv.  280,  281  ;  Wms.  Eeal 
Prop.  275  ;  3  Cruise,  Dig.  590  ;  Tud.  Lead.  Cas,  177,  178. 

2  Tliough  Burton  sa3's  a  reservation  of  a  rent  to  a  stranger  wonld  probably  be 
considered  a  grant  to  him.    Burt.  Real  Prop.  §  1103;  3  Cruise,  Dig.  278;  Lit.  §  346. 

3  2  Dane,  Abr.  452. 

♦  IngersoU  v.  Sergeant,  1  "Whart.  337. 

6  The  People  v.  Haskins,  7  Wend.  463, 

6  3  Prest.  Abst.  53. 

^  3  Cruise,  Dig.  285 ;  Van  Rensselaer  v.  Hays,  19  N.  Y.  68. 

8  3  Cruise,  Dig.  292  ;  Van  Rensselaer  v.  Read,  26  N.  Y.  538,  564,  572. 

9  3  Cruise,  Dig.  293,  294 ;  Watk.  Conv.  281. 
10  3  Cruise,  Dig.  291. 


252  INCORPOREAL   HEREDITAMENTS. 

always  follows  the  right.^  The  only  mode  of  gaining  a  seisin 
of  a  rent  is  by  accepting  or  receiving  some  part  thereof.^ 
From  tlie  general  analogy  that  exists  between  fee-farm  rents 
and  lands,  in  respect  to  estates  therein  and  their  incidents,  it  is 
not  deemed  necessary  to  pursue  the  subject  into  all  its  details  ; 
but  it  may  be  proper  to  consider  the  purposes  to  which  these 
rents  usually  are  applied,  and  how  far  they  prevail  in  this 
country. 

§  1194.  Purposes  for  which  Rents  created. — They  seem  tO 
have  been  first  adopted  for  the  purpose  of  carving  out  an 
interest  in  lands  in  favor  of  some  one  other  than  the  heir,  with- 
out disturbing  the  feud.  But  as  it  was  in  derogation  of  the 
feudal  rights,  the  law  did  not  annex  the  remedy  for  enforcing 
the  payment  of  the  rent  by  distress,  unless  the  parties  specially 
agreed  thereto.  In  modern  days,  rents  are  created  for  the 
purpose  of  raising  jointures  for  married  women,  or  making 
provision  for  heirs,  by  anticipation,  to  constitute  them  free- 
holders, or  for  raising  money  by  way  of  anuuity  chargeable 
upon  real  estate,  and  the  like.  And  between  these  and 
mortgages  there  are  obvious  distinctions,  though  the  intended 
effect  may  be  the  same.  In  the  case  of  a  mortgage,  for  instance, 
there  is  a  debt  to  be  returned  to  the  mortgagee.  In  that  of  a 
rent,  there  is  an  absolute  purchase,  and  nothing  is  to  be  returned 
to  the  purchaser  but  what  he  is  to  receive  from  year  to  year 
out  of  the  estate.  And  if  the  owner  of  the  land  extinguish 
the  rent  by  the  payment  of  a  sum  of  money,  it  is  in  the  nature 
of  a  purchase  instead  of  a  redemption.^  Such  a  rent  cannot  of 
course  continue  any  longer  than  the  estate  in  the  land  of  him 
who  created  it.  If,  therefore,  he  has  a  fee-simple,  he  may 
create  a  rent  for  a  term  of  years,  or  for  life,  or  in  fee,  though 
to  have  it  a  good  rent  it  must  be  created  by  one  who  is  seised 
of  land  ;  for  a  rent  cannot  be  granted  or  created  out  of  an 
incorporeal  inheritance,  and  it  must  be  done  by  deed.* 

§  1195.  Fee-farm  Rents  are  unusual  in  this  Country,  but  they 
are  not  unknown.^     And  in  New  York,  a  rent  charge  reserved 

1  3  Cruise,  Dig.  295  ;  Burt.  Keal  Prop.  §  1116. 

2  3  Cruise,  Dig.  274. 

3  Walk.  Conv.,  Coventry's  note,  276,  277. 

*  Lit.  §  218  ;  Wms.  Real  Prop.  270  ;  2  Dane,  Abr.  452. 

6  3  Dane,  Abr.  450 ;  Adams  v.  Bucklin,  7  Pick.  121,  123,  which  was  a  caae  of  a 


INCORPOREAL   HEREDITAMENTS.  253 

out  of  a  grant  in  fee  is  good,  and  descends  to  the  heirs  of  him 
in  whose  favor  it  is  reserved.  Such  covenants  to  pay  rent  run 
with  the  land  as  a  burden  ;  such  rent  charge  may  also  be 
devised. 1  Nor  can  the  personal  representative  of  the  grantor, 
to  whom  rent  was  I'eserved,  have  any  action  to  recover  rent 
upon  default  happening  after  the  grantor's  death.  Nor  can  the 
devisee  of  rent  maintain  an  action  against  the  personal  repre- 
sentative of  the  original  covenantor  for  any  default  of  payment 
occurring  after  the  covenantor's  death.'^ 

§  1196.  Remedy  for  recovering  Rents  —  Distress.  —  The  com- 
mon law  gave  the  owner  of  a  rent  service  the  right  to  distrain 
the  tenant's  cattle  or  other  personal  property  upon  the  prem- 
ises for  the  purpose  of  compelling  the  payment  thereof ;  and 
this  right  still  exists  in  Pennsylvania.^  The  English  statute 
extended  the  right  of  distress  to  cases  of  rent  charge  and  rent 
seck.^  The  right  of  making  distress  in  case  of  rent  charge 
existed  in  New  York  until  1846,  when  it  was  abolished  by  stat- 
ute.^ It  never  existed  in  the  New  England  States.^  But  the 
common  law  right  of  distress,  as  modified  by  the  statute  4  Geo. 
II.  c.  28,  lias  been  adopted  as  the  law  of  many  of  the  States. 
It  is  stated  that  the  common  law  upon  the  subject  of  distresses 
for  rent  has  been  adopted  very  generally  in  the  United  States." 
As  the  purpose  of  this  chapter  is  rather  to  define  the  right  than 
to  prescribe  the  forms,  in  detail,  of  the  remedy,  the  reader  must 
be  referred  to  treatises  designed  for  that  purpose  for  the  law 
as  to  when,  where,  and  how  distresses  may  be  made  use  of  as  a 
means  of  enforcing  the  payment  of  rents.^ 

§  1197.  Recovery  by  Action.  —  Whether  there  is  a  power  of 
distress  or  not,  the  one  to  whom  the  rent  is  due  may  have  a 

rent  charge  reserved  upon  a  grant  of  land  in  fee.  Alexander  v.  Warrance,  17  Mo. 
228  ;  Farley  v.  Craig,  11  N.  J.  262  ;  Wartenby  y.  Moran,  3  Call,  424;  Scott  v. 
Lunt,  7  Pet.  .596,  602  ;  Marshall  i'.  Conrad,  5  Call,  364,  406. 

1  Van  Rensselaer  v.  Hays,  19  N".  Y.  68. 

2  Van  Rensselaer  v.  Read,  26  N.  Y.  538,  565 ;  Van  Rensselaer  v.  Platner, 
2  Johns.  Cas.  17;  AYilliams's  App.,  47  Penn.  St.  283,  290. 

3  Smith  Land.,&  Ten.  161,  n.;  2  Sharsw.  Bl.  Com.  43,  n. 

4  Taylor,  Land.  &  Ten.  231;  3  Prest.  Abs.  54. 

5  Guild  V.  Rogers,  8  Barb.  502. 

6  2  Dane,  Abr.  451;  3  Kent,  Com.  473,  n. 

7  Smith,  Land.  &  Ten.  161,  n. 

8  Smith,  Laud.  &  Ten.  (Morris's  ed.)  157,  186;  Tud.  Lead.  Cus.  188,  194. 


254  INCORPOREAL    HEREDITAMENTS. 

remedy  by  action  at  law  to  recover  the  same  from  him  who 
liolds  the  land  out  of  which  it  is  payable.  Thus  where,  upon  a 
lease  in  fee,  there  was  reserved  a  certain  rent,  and  a  covenant 
in  the  lease  on  the  part  of  the  lessee,  binding  himself  and  all 
liolding  his  estate  to  the  payment  thereof,  it  was  held  that  a 
reversioner  could  recover  rent,  pro  rata,  from  one  who  held  a 
part  of  the  leased  estate.^  And  the  assignee  of  a  rent  may 
recover  though  he  have  no  reversion  in  the  land.^  And  there 
is  sometimes  a  right  reserved  to  the  holder  of  the  rent  to  enter 
upon  the  premises,  and  either  defeat  the  title  of  the  owner 
thereof,  as  for  a  breach  of  a  condition,  or,  what  is  more  com- 
mon, hold  the  same  until  he  shall  have  been  reimbursed  the 
rent  out  of  the  income  of  the  estate.  The  form  of  tlie  action, 
as  well  as  the  extent  of  the  right  of  entry  by  the  holder  of  the 
rent,  depends  upon  the  terms  of  the  deed  by  which  the  rent 
was  created.  Thus  one  may  enfeoff  another  in  fee,  reserving  to 
himself  and  heirs  a  rent,  with  a  condition  that  he  may  enter 
and  repossess  himself  of  the  original  estate  upon  non-payment 
thereof.  This  constitutes  a  conditional  estate  which  the  grantor 
or  his  heirs  may  be  able  to  enforce,  but  not  an  assignee  or 
grantee  of  the  rent/^  This  condition  may  be  enforced  by  entry 
without  previous  notice  and  demand,  if  the  parties  so  agree,  by 
the  instrument  granting  the  estate.*  But  where,  as  is  usual,  a 
demand  of  the  rent  must  be  made  before  undertaking  to  enter 
and  defeat  the  estate,  the  law  is  exceedingly  strict  as  to  the 
manner  in  which  this  is  to  be  done.^ 

§  1198.  "When  Grantor  may  take  and  hold  Possession.  —  In- 
stead of  a  condition  giving  to  the  grantor  a  right  to  enter 
and  defeat  the  grantee's  estate  altogether  upon  non-payment 
of  the  rent  reserved,  the  instrument  may  be  so  framed  that 
the  grantor  may  enter  and  hold  possession  until  lie  makes  the 
rent  out  of  the  enjoyment  of  the  estate,  in  which  case  the  land 
goes  back  to  the  grantee  or  his  assigns.  And  by  the  way  of  a 
use,  to  be  hereafter  explained,  the  right  to  enter  for  this  pur- 
pose may  be  reserved  to  another  than  the  grantor  and  his 

1  Van  Rensselaer  v.  Bonesteel,  24  Barh.  365. 

2  Van  Rensselaer  v.  Read,  26  N.  Y.  564. 

3  Lit.  §  325,  and  note  84;  Stephenson  v.  Haines,  16  Ohio  St.  478. 

4  Co.  Lit.  201,  note  85. 
6  Ante,  §  659. 


INCORPOREAL    HEREDITAMENTS.  255 

heirs.i  ^nd  this  right  to  liold  for  the  rent  may  be  defeated  at 
any  time  by  the  payment  of  the  balance  due ;  nor  is  so  nice  an 
observance  of  the  rule  as  to  a  demand  of  rent  before  makin<r 
entry  necessary  in  such  a  case,  as  where  the  effect  of  the  entry 
would  be  to  defeat  the  entire  estate.^ 

§  1199.  The  Form  of  Action  for  the  recovery  of  the  rent 
seems  to  depend  upon  the  form  of  the  instrument  by  which 
this  was  created.  If  by  indenture  the  grantee  of  the  land  and 
grantor  of  the  rent  covenants  to  pay,  the  covenantee  may  have 
covenant  for  the  same.^  If  the  rent  is  reserved  in  a  deed  poll, 
inasmuch  as  the  grantee  signs  nothing,  nor  binds  himself  by 
any  express  agreement  on  his  part,  covenant  would  not  lie, 
but  assumpsit  would.*  And  in  most  cases. an  action  of  debt 
lies  for  the  recovery  of  rent.^  These  are  independent  of  the 
common  law  right  of  the  person  seised  of  a  rent  to  enforce  the 
same  against  the  land  by  a  writ  of  assize,^  or  by  ejectment, 
which  may  be  brought  by  the  assignee  of  a  fee-farm  rent  re- 
served, if  with  it  is  reserved  a  right  of  distress  or  re-entry  for 
non-payment  of  the  same.^  Nor  would  the  abolishing  of  the 
right  to  distrain  affect  the  right  of  the  holder  of  the  rent  to 
avail  himself  of  any  other  remedy  he  may  have  under  the  con- 
tract by  which  it  was  created.  A  substantial  remedy  still 
exists  for  the  recovery  of  rent,  the  same  that  exists  under  the 
laws  for  the  recovery  of  every  other  debt,  —  the  obhgation  of 
the  contract  is  unimpaired.^     As  a  general  proposition,  who- 

1  Lit.  §  327  ;  Co.  Lit.  203,  and  note  93  ;  Farley  v.  Craig,  11  N.  J.  262. 

2  Co.  Lit.  202,  203  ;  Farley  v.  Craig,  11  N.  J.  262,  270,  was  a  case  of  ejectment 
to  recover  a  parcel  of  land,  to  hold  and  take  the  profits  until  they  should  satisfy  the 
arrears  of  a  certain  rent  charge  created  by  a  deed  from  Logan  to  Smith,  in  fee,  re- 
serving a  rent  in  fee,  the  defendant  claiming  the  land  by  mesne  conveyances  from 
Smith,  and  the  plaintiff  claiming  the  rent  bj'^  conveyance  from  Logan's  heirs. 

3  3  Cruise,  Dig.  288  ;  Porter  v.  Swetnam,  Styles,  406 ;  Parker  v.  Webb,  3  Salk. 
5 ;  Vyvyan  v.  Arthur,  1  B.  &  C.  410. 

*  Adams  v.  Buckin,  7  Pick.  121 ;  Goodwin  v.  Gilbert,  9  Mass.  510  ;  Newell  v. 
Hill,  2  Met.  180  ;  Johnson  v.  Muzzy,  45  Vt.  419  ;  Burbank  v.  Pillsbury,  48  N.  H. 
475 ;  Hinsdale  v.  Humphrey,  15  Conn.  431  ;  Trustees  v.  Spencer,  7  Ohio,  Pt.  2, 
149  ;  Gale  v.  Nixon,  6  Cow.  445.  But  see  Atlantic  Dock  Co,  v.  Leavitt,  54  N.  Y. 
35,  where  a  different  rule  is  laid  down.  So  in  New  Jersey.  Finley  v.  Simpson, 
22  N.  J.  311  ;  ante,  §  667. 

6  Duppa  V.  Mayo,  1  Saund.  281;  3  Cruise,  Dig.  288. 

6  Steams,  Real  Act.  188  ;  Lit.  §  233 ;  Steph.  N.  P.  1223. 

''  Marshall  v.  Conrad,  5  Call,  364,  405. 

8  Guild  V.  Rogers,  8  Barb.  502,  504;  Van  Rensselaer  v.  Slingerland,  26  N.  Y. 


256  INCORPOREAL    HEREDITAMENTS. 

ever  is  entitled  to  a  sum  of  money  charged  upon  land,  without 
any  existing  covenant  between  the  tenant  and  himself,  may 
have  assumpsit  to  recover  the  same.  ^ 

§  1200.  Liability  of  Assignee  of  the  Land.  —  An  assignee  of 
land  charged  with  a  rent  is  liable  to  the  grantee  of  the  rent  by 
reason  only  of  holding  the  land,  and  ceases,  therefore,  to  be 
liable  for  any  rent  accruing  after  he  shall  have  parted  with 
the  estate.  In  one  case  the  court  say :  "  Debt  lies  by  a  lessor 
against  the  assignee  only  upon  privity  of  estate ;  and  when  this 
fails  by  the  assignment  over,  the  action  is  at  an  end."  ^  But 
there  is  such  a  privity  between  the  assignee  of  rent  and  an  as- 
signee of  the  land  who  is  bound  by  the  covenant  of  his  assignor 
to  pay  it,  that  the  former,  without  any  reversion  in  the  land,  can 
maintain  an  action  at  law  on  the  covenant  against  the  latter.^ 
The  same  rule  applies  as  to  a  rent  in  fee,  for  life  or  for  years, 
when  severed  from  the  reversion.*  And  it  was  held  in  Penn- 
sylvania, that  the  assignee  of  an  aliquot  part  of  a  ground  rent 
might  recover  for  the  same  against  the  party  who  owes  it,  and 
might  sue  for  it  in  his  own  name.^  It  was  held  by  the  Supremo 
Court  of  the  United  States,  that  an  assignee  of  a  fee-farm  rent 
might  maintain  covenant  for  its  recovery  in  his  own  name,  by 
virtue  of  the  statute  32  Hen.  YIII.  c.  34,  by  which  the  common 
law  was  altered  so  that  the  grantee  of  the  reversion  of  a  lease- 
hold estate  might  sue  for  the  accruing  rent  in  his  own  name. 
They  also  held  that  the  action  would  lie  against  the  personal 
representatives  of  the  lessee  from  whom  the  rent  was  reserved.^ 
But  this  law  as  to  the  right  of  an  assignee  of  a  covenant  to  sue 
for  a  breach  of  it  in  his  own  name  in  any  case,  unless  some 

580,  587  ;  Jemmot  v.  Cooly,  1  Lev.  170  ;  Van  Kensselaer  v.  Dennison,  35  N.  Y. 
393,  400  ;  Tyler  v.  Heidorn,  46  Barb.  439. 

1  Swasey  v.  Little,  7  Pick.  296  ;  Felch  v.  Taylor,  13  Pick.  133  ;  Adams  v. 
Adams,  14  Allen,  65;  Pinkerton  v.  Sargent,  112  Mass.  110. 

2  Pitcher  V.  Tovey,  4  Mod.  71,  76  ;  s.  c.  12  Mod.  23;  Hiester  v.  Schaeffer, 
45  Penn.  St.  537  ;  ante,  §  671. 

3  Van  Eensselaer  v.  Read,  26  X.  Y.  572,  573,  579;  Springer  v.  Phillips,  71 
Peun.  St.  60,  63. 

*  Ibid.;  Van  Rensselaer  v.  Dennison,  35  N.  Y.  400  ;  ante,  §  701. 

5  Cook  V.  Brightl3%  46  Penn.  St.  439,  445. 

6  Scott  V.  Lunt,  7  Pet.  596,  602;  Van  Rensselaer  v.  Hays,  19  N.  Y.  68,  80,  98  ; 
2  Sugd.Vend.  (6th  Am.  from  10th  Eng.  ed. )  482.  But  quwre,  if  the  statute  32  Hen. 
VIII.  c.  34,  applies  to  covenants  where  there  is  no  reversion.  Quain's  App.,  22 
Penn.  St.  510 ;  Williams's  App.,  47  Penn.  St.  290. 


INCORPOREAL    HEREDITAMENTS.  257 

estate,  to  which  the  covenant  is  attached,  passes  with  the  assign- 
ment of  the  covenant,  is  controverted  by  Mr.  Hare,  in  his  note 
to  Spencer's  case,  and  is  at  variance  with  a  case  in  New  York, 
where  it  was  held  tliat  the  statute  32  Hen.  VIII.  c.  34,  did  not 
apply  to  cases  of  a  fee-farm  rent.^ 

§  1201.  Distinction  between  Rent  reserved  and  one  granted.  — 
A  distinction  has  been  sometimes  supposed  to  exist  between  a 
rent  reserved  and  one  granted,  so  far  that,  in  the  latter  case, 
the  grantee  of  the  land  out  of  which  it  was  granted  should  not 
be  charged  with  the  covenant  to  pay  the  rent ;  and  the  lan- 
guage of  Lord  Holt,  as  given  by  Lord  Raymond  in  his  report 
of  Brewster  v.  Kitchin,^  has  been  relied  on  as  sustaining  this 
distinction.  But  Denio,  J.,  in  the  case  above  cited,^  insists 
that  the  language  of  Lord  Holt  has  been  misapprehended,  and 
quotes  with  approbation  the  language  of  Sir  Edward  Sugden  : 
"  Covenants  ought  to  be  held  to  run  in  both  directions  with  the 
rent  or  interest  carved  out  of  or  charged  upon  it  [the  land]  in 
the  hands  of  the  assignee,  so  as  to  enable  him  to  sue  upon 
them,  and  with  the  land  itself  in  the  hands  of  the  assignee,  so 
as  to  render  him  liable  to  be  sued  upon  them."  *  The  court 
add :  "  There  seems  to  be  no  distinction  favorable  to  the 
defendant  between  a  perpetual  rent  charge  granted  by  the 
owner  of  the  estate  and  a  like  rent  reserved  by  a  conveyance 
in  fee  by  indenture,  where  the  grantee  covenants  for  himself 
and  his  assigns  to  pay  it." 

1  Smith,  Lead.  Cas.  (8th  Am.  ed.)  193,  195  ;  Van  Eensselaer  v.  Platner,  2  Johns. 
Cas.  24.  This  case  is  commented  on  in  Van  Rensselaer  v.  Hays,  19  N.  Y.  80, 
where  the  judge  was  inclined  to  hold,  if  it  had  not  been  for  the  cases  cited,  that 
covenants  would  run  with  rents  into  the  hands  of  the  assignees  of  such  rents,  rely- 
ing upon  2  Sugd.  Vend.  {6th  Am.  from  10th  Eng.  ed. )  482.  See  Van  Rensselaer  y. 
Smith,  27  Barb.  104,  143,  146  ;  ante,  §  672;  McQuesney  v.  Hiester,  33  Penn.  St. 
435  ;  Van  Rensselaer  v.  Bonesteel,  24  Barb.  265  ;  Van  Rensselaer  v.  Read,  26  N.  Y. 
570.  The  above-cited  statute  is  not  in  force  in  Ohio,  but  an  assignee  may  sue  in 
his  own  name.     Masury  v.  Southworth,  9  Ohio  St.  346. 

2  Brewster  v.  Kitchin,  1  Ld.  Raym.  317,  322. 

8  Van  Rensselaer  v.  Hays,  19  N.  Y.  68,  90,  91  ;  Tyler  v.  Heidorn,  46  Barb. 
442,  451. 

*  2  Sngd.  Vend.  492.  See  also,  upon  the  same  subject,  Co.  Lit.  §§  217,  218  ; 
Morse  V.  Aldrich,  19  Pick.  449  ;  Plymouth  v.  Carver,  16  id.  183  ;  Taylor  v.  Owen, 
2  Blackf.  301  ;  Van  Rensselaer  v.  Read,  26  N.  Y.  566,  570,  571,  574,  580  ;  Scott 
V.  Lunt,  7  Pet.  596  ;  Holmes  v.  Buckley,  Prec.  in  Ch.  39  ;  1  Eq.  Cas.  Abr,  27, 
pi.  4.  See  Bronson  t'.  Coffin,  108  Mass.  175. 
VOL.  II.  — 17 


258  INCORPOREAL   HEREDITAMENTS. 

§  1202.  Covenants  for  Rent  running  with  the  Land.  —  It  has 
also  been  attempted  to  maintain  the  doctrine,  that  although 
the  burden  of  a  covenant  to  pay  rent  may  not  be  imposed  upon 
land  in  favor  of  a  stranger,  so  as  to  run  with  it,  and  bind  an 
assignee  of  the  land,  a  stranger  may  covenant  with  the  land- 
owner in  such  a  manner  as  to  attach  the  lenefit  of  the  covenant 
to  the  land,  and  have  it  run  with  it  in  favor  of  whoever  may 
become  the  owner  thereof.  It  is  not  pretended  that  this  can 
be  done  except  where  the  covenant  is  to  do  some  act  for  the 
benefit  of  the  estate  upon  the  land  itself.  The  doctrine  above 
stated  is  advocated  by  the  editor  of  the  American  edition  of 
Smith's  Leading  Cases,^  is  favored  by  the  English  Commis- 
sioners upon  Real  Property ,2  and  is  assumed  to  be  law  in  the 
cases  cited  below.^  To  sustain  it,  reference  is  also  made  to 
Pakenham's  case,^  commonly  known  as  the  Prior  and  Convent 
case,  and  to  Coke's  opinion.^ 

§  1203.  Privity  of  Estate  required.  —  But  it  is  believed  that 
the  point  has  never  been  determined  in  this  way  by  a  full  court, 
though  assumed  by  individual  judges,  and  that,  respectable  as 
these  opinions  in  its  favor  may  be,  the  doctrine  contended  for 
is  opposed  to  well-settled  principles  as  well  as  the  highest 
authority.  With  a  very  few  exceptions,  the  uniform  current 
of  authorities,  from  the  time  of  Webb  v.  Russell,^  to  the  pres- 
ent day,  requires  a  privity  of  estate  to  give  one  man  a  right  to 
sue  another  upon  a  covenant  where  there  is  no  privity  of  con- 
tract between  them ;  and  consequently  that  where  one  who 
makes  a  covenant  with  another  in  respect  to  land   neither 

1  1  Smith,  Lead.  Cas.  (5th  Am.  ed.)  124  ;  id.  140  ct  seq. 

2  3  Report  Eiig.  Com.  52. 

3  Per  Jewett,  J.,  Allen  v.  Culver,  3  Denio,  284,  301  ;  Dickinson  v.  Hoomes, 
8  Gratt.  353,  403,  by  Moncure,  J.  In  Cole  v.  Hughes,  54  N.  Y.  444,  Earl,  J.,  says  : 
"  There  is  a  wide  difference  between  the  transfer  of  the  burden  of  a  covenant  run- 
ning with  the  land  and  the  benefit  of  the  covenant,  or,  in  other  words,  of  the  lia- 
bility to  fulfil  the  covenant,  and  the  right  to  exact  the  fulfilment.  The  benefit 
will  pass  with  the  land  to  which  it  is  incident ;  but  the  burden  or  liability  will  be 
confined  to  the  original  covenantor,  unless  the  relation  of  privity  of  estate  or  tenure 
exists  or  is  created  between  covenantor  and  covenantee  at  the  time  when  the  cove- 
nant is  made."     And  see  Burbank  v.  Pillsbury,  48  N.  H.  475,  479. 

4  Year  B.  42  Edw.  III.  3  pt.  14,  which  is  fully  stated  in  2  Sugd.  Vend.  (6th  Am. 
ed.)  473.     See  also  Keppell  v.  Bailey,  2  Mylne  &  K.  517,  539. 

6  Co.  Lit.  384  b  ;  Rawle,  Cov.  335. 
6  Webb  V.  Eussell,  3  T.  R.  393. 


INCORPOREAL   HEREDITAMENTS.  259 

parts  with  nor  receives  any  title  or  interest  in  the  land,  at  tlie 
same  time  with  and  as  a  part  of  making  the  covenant,  it  is  at 
best  a  mere  personal  one,  which  neither  binds  his  assignee, 
nor  enures  to  the  benefit  of  the  assignee  of  the  covenantee,  so 
as  to  enable  the  latter  to  maintain  an  action  in  his  own  name 
for  a  breach  thereof.^  [Thus,  it  has  been  held  that  the  cove- 
nant of  a  husband  who  joins  with  his  wife  in  the  conveyance 
of  her  separate  estate  is  not  a  covenant  running  with  the  land,^ 
he  having  no  estate  therein.] 

§  1204.  Privity  of  Estate  defined.  —  It  is  not  casy  to  define, 
in  a  few  words,  what  is  meant  in  all  cases  by  the  expression 
"  privity  of  estate."  But  it  is  apprehended  that,  in  the  matter 
of  a  covenant  running  with  land,  the  language  of  Wilde,  J.,  in 
Hurd  V.  Curtis,  furnishes  a  sufficient  clew.  There  the  respec- 
tive parties,  owning  independent  estates,  entered  into  certain 
covenants  with  each  other  as  to  the  kinds  of  wheels  they 
should  respectively  use  in  their  several  mills.  The  grantee 
of  one  of  these  estates  was  sued  by  the  covenantee,  who  had 
retained  his  estate,  for  breaking  the  covenant  as  to  the  use  of 
wheels  in  the  granted  estate.  "  We  are  of  opinion  that  this 
action  cannot  be  maintained,  as  there  was  no  privity  of  estate 
between  the  covenanting  parties.  Their  estates  were  several, 
and  the7'e  was  no  grant  of  any  interest  in  the  real  estate  of  either 
party  to  which  the  covenant  could  he  annexed^  ^  So  where  one 
of  two  adjacent  owners  of  land  covenanted  with  the  other, 
that,  if  he  would  erect  a  party-wall  between  their  estates,  the 
former  would  pay  the  latter  for  one  half  of  it  whenever  he 
should  use  it,  it  was  held  to  be  a  personal  covenant,  and  not  to 
run  with  the  land  so  as  to  bind  the  purchaser  of  the  covenant- 
or's land  who  should  erect  a  building  against  the  party-wall.* 

1  This  is  clearly  held  as  to  the  burden  ;  Cole  v.  Huf^hes,  54  N.  Y.  444,  which, 
though  questioned  in  Brown  v.  McKee,  57  N.  Y.  684,  by  Dwight,  C,  is  affirmed  in 
Scott  V.  McMillan,  76  N.  Y.  144,  where,  as  in  Cole  v.  Hughes,  the  aa-eement  was 
to  pay  for  one  half  of  a  party-wall  when  used.  See,  however,  Richardson  v.  Tobey, 
121  Mass.  457,  where  the  subject-matter  was  considered  to  create  a  privity  through 
the  easement. 

2  Mygatt  V.  Coe,  152  N.  Y.  457  ;  s.  c.  46  N.  E.  Rep.  949. 

8  Hurd  V.  Curtis,  19  Pick.  459,  464  ;  Van  Rensselaer  v.  Bonesteel,  24  Barb.  365. 
But  see  post,  §  1205,  n. 

4  Block  V.  Isham,  28  Ind.  37  ;  Weld  v.  Nichols,  17  Pick.  543  ;  Cole  v.  Hughes, 
54  N.  Y.  449.  See,  however,  Hazlett  v.  Sinclair,  75  Ind.  488,  where  Block  v. 
Isham  is  distinguished. 


2G0  INCORPOREAL    HEREDITAMENTS. 

Bat  it  is  not  necessary  to  create  the  relation  of  feudal  tenure 
between  the  covenantor  and  covenantee,  in  order  that  a  cove- 
nant should  run  with  the  land.^  And  a  covenant  may  run  with 
a  rent  as  with  the  land  itself.^  Where  one  granted  land  to  a 
railroad  company  for  the  purposes  of  their  road,  and  cove- 
nanted for  himself  and  his  assigns  to  fence  it  and  keep  it 
fenced,  it  was  held  to  be  a  covenant  which  runs  with  the  land, 
and  bound  his  grantee.^  So  a  grant  of  land  with  a  covenant 
to  keep  in  repair  a  drain  that  drains  it  runs  with  the  land.* 
And  a  covenant  in  a  deed  of  grant,  not  to  build  upon  the 
granted  premises  within  so  many  feet  of  a  street,  was  held  to 
run  with  the  land.^  A  covenant  by  one  selling  land  with  his 
grantee  not  to  sell  any  marl  off  of  adjoining  land  belonging  to 
him  was  held  not  to  bind  the  grantee  of  such  adjacent  land, 
who  purchased  with  notice,  as  the  covenant  did  not  run  with  the 
land.^  A  covenant  by  the  owner  of  a  mill  privilege,  for  him- 
self, his  heirs  and  assigns,  that  no  one  should  be  allowed  to 
erect  a  mill  thereon,  would  not  bind  the  person  to  whom  he 
should  convey  the  mill  privilege.  It  would  bind  the  cove- 
nantor alone  ;  as,  when  he  made  it,  he  conveyed  no  interest  in 
the  land  to  the  covenantee.'^ 

§  1205.  Covenants  running  ■with  Land  further  considered.  — 
Such  covenants,  and  such  only,  run  with  land  as  concern  the 
land  itself,  in  whosesoever  hands  it  may  be,  and  become  united 
with,  and  form  a  part  of,  the  consideration  for  which  the  land, 
or  some  interest  in  it,  is  parted  with,  between  the  covenantor 

1  Van  Rensselaer  v.  Read,  26  N.  Y.  578. 

2  Deraarest  v.  Willard,  8  Cow.  206  ;  Willard  v.  Tillman,  2  Hill,  274  ;  Patten  v. 
Deshon,  1  Graj%  325  ;  ante,  §  668  b. 

3  Easter  v.  Miami  R.  R.,  14  Ohio  St.  51  ;  Trustees  v.  Cowen,  4  Paige,  510  ;  Bar- 
row V.  Richard,  8  Paige,  351  ;  Bronson  v.  Coffin,  108  Mass.  175.  So  where  a  rail- 
way company,  in  order  to  secure  a  reduction  of  damages  upon  condemnation 
proceedings,  stipulated  to  build  crossings  for  the  landowner,  it  was  held  a  covenant 
running  with  the  land.  Lyon  v.  Hammond  &  B.  I.  R.  Co.,  167  111.  527  ;  s.  c.  47 
N.  E.  Rep.  775. 

*  Norfleet  v.  Cromwell,  64  N.  C.  1  ;  70  X.  C.  634,  limiting  Blount  v.  Harvey, 
6  Jones  (N.  C),  186. 

5  Winfield  v.  Henning,  21  N.  J.  Eq.  183.  So  a  restriction  as  to  time  of  build- 
ing and  the  height  of  buildings.  Brown  v.  O'Brien,  168  Mass.  484  ;  s.  C.  47  N.  E. 
Rep.  195. 

6  Brewer  v.  Marshall,  19  N.  J.  Eq.  542. 
T  Marsha  v.  Reid,  45  N.  Y.  415,  418. 


INCOKPOREAL    HEIlEDlTAMEiNTS.  261 

and  covoiiantee.^  If  one  sell  land  to  another,  and  give  him 
therewith  a  covenant  for  title,  he  pays  just  so  much  more  for 
the  land  as  the  covenant  enhances  the  price.  And  the  same 
would  be  true  with  a  purchaser  from  him  who,  relying  upon 
the  covenant,  pays  him  a  i)ricc  enhanced  accordingly.  And  if 
the  title  fails,  such  second  purchaser  ought  to  be  the  one  to 
receive  from  the  covenantor  the  money  originally  paid  for  his 
agreement  to  make  it  good.  So  if  one  sell  land,  and  reserve  a 
rent  in  fee,  his  vendee  pays  just  as  much  less  for  it  than  he 
would  for  a  free  title  as  the  principal  would  amount  to,  whose 
interest  was  equal  to  this  rent,  and  he  to  whom  he  sells  pays  a 
price  accordingly.  In  either  case  the  covenant  becomes  in 
effect  a  part  of  the  estate  itself ;  and  whoever  takes  the  estate 
in  one  case  should  have  the  benefit,  and  in  the  other  should 
bear  the  burden.  And  this,  it  is  believed,  covers  the  decided 
cases,  and  applies  as  well  to  covenants  of  title  betvreen  grantor 
and  grantee  as  to  covenants  between  lessor  and  lessee.  An 
example  would  be  a  demise  of  a  right  to  kill  game,  and  a 
covenant  on  the  part  of  the  lessee  to  have  the  estate  stocked 
with  game  at  the  end  of  the  term.  Such  covenant  would 
run  with  the  estate,  and  might  be  sued  by  the  assignee  of  the 
reversioner.^  But  if  one  simply  covenant  with  a  stranger  to 
build  a  house,  or  repair  a  mill-dam,  it  is  not  easy  to  see  how  it 
can  be  other  than  a  personal  covenant,  or  how  it  can  make  any 

1  In  Parish  v.  Whitney,  3  Gray,  516,  it  is  also  held  that  where  the  stipulation 
—  such  as  to  maintain  a  division  fence  —  is  not  under  seal  by  the  obligor,  it  is  no 
covenant,  and  therefore  cannot  bind  his  grantees  by  reason  of  privity  of  estate. 
So  Bronson  v.  Coffin,  108  Mass.  175,  186  ;  Kennedy  v.  Owen,  136  Mass.  199.  Nor 
does  it  enure  to  the  benefit  of  tlie  grantor's  assignees.  Martin  v.  Driuan,  128  Mass. 
515  ;  Joy  v.  Penny  Sav.  Bk.,  115  Mass.  60.  But  a  stipulation,  in  a  deed 
poll,  not  for  an  active  duty,  but  negative,  such  as  a  restriction  on  the  use  of  the  land, 
creates  an  easement  whose  burden  runs.  Kramer  v.  Carter,  136  Mass.  504;  Brown 
IK  O'Brien,  sitpra.  The  doctrine  of  Parish  v.  Whitney  is  denied  in  Burbank  v. 
Pillsbury,  48  N.  H.  475.  So  Kellogg  v.  Robinson,  6  Vt.  276  ;  and  an  action  at  law 
was  held  to  lie.  And  in  New  York  and  New  Jersey  such  a  stipulation  is  held  a 
covenant.  Atlantic  Dock  Co.  v.  Leavitt,  54  N.  Y.  35  ;  Finley  v.  Simpson,  22  N.  J. 
311 ;  ante,  §  667.  It  is  clearly  enforceable  in  equity  against  one  who  takes  with 
notice.  Tulk  v.  Moxhay,  2  Phill.  774.  Where,  however,  a  stipulation  to  pay  for 
half  of  a  division  wall,  when  used,  is  by  the  grantor,  either  assumpsit  will  lie  against 
his  assignee  by  deed,  Maine  v.  Cumston,  98  Mass.  317  ;  Standish  v.  Lawrence,  111 
Mass.  Ill  ;  or  the  obligation  runs  as  a  covenant,  Richardson  v.  Tobey,  121  Mass. 
457.     But  Cole  V.  Hughes,  54  N.  Y.  444,  seems  contra. 

2  Hooper  v.  Clark,  L.  K.  2  Q.  B.  200. 


262  INCORPOREAL   HEREDITAMENTS. 

difference  in  its  character  in  that  respect,  whether  the  act  is  to 
be  done  upon  the  covenantee's  land  or  that  of  a  stranger.  The 
subject  is  fully  discussed  by  Sir  Edward  Sugden  in  his  treatise 
on  Vendors,^  and  the  reader  is  also  referred  to  the  following 
cases  as  sustaining  the  doctrine  above  stated.^  It  seems  that 
the  same  effect  would  be  produced  if  one  sells  an  interest  in 
real  estate  and  takes  his  pay  for  it,  and  covenants  for  the  title, 
though  he  has  no  title,  and  none  actually  passes ;  his  covenant 
would  run  with  the  land  so  as  to  estop  him  if  he  should  acquire 
a  title.^  [And  a  covenant  in  a  common  law  mortgage  may  be 
so  expressed  as  to  survive  payment  of  the  debt  and  discharge 
of  the  mortgage  and  run  with  the  land.*] 

§  1206.  Covenant  for  Rent  not  assignable  after  due,  —  No 
assignment,  however,  can  give  the  assignee  a  right  to  recover 
rent  in  his  own  name  which  had  become  due  before  the  assign- 
ment made,  as,  upon  becoming  due,  it  had  become  a  chose  in 
action,  and  was  not  assignable.^ 

1  2  Sugd.  Vend.  (6th  Am.  from  10th  Eng.  ed.)  468-484. 

2  Piatt,  Gov.  461,  462;  4  Greeiil.  Cruise,  Dig.  571  tt  seq.,  note  ;  4  Kent,  Com. 
472,  473;  Lee,  Abst.  371;  Bally  v.  Wells,  3  Wils.  25,  29,  where  it  is  said: 
"  When  the  thing  to  be  done  or  omitted  to  be  done  concerns  the  lands  or  estate, 
that  is  the  medium  which  creates  the  privity  between  the  plaintiff  and  defendant." 
Taylor  v.  Owen,  2  Blackf.  801  ;  Keppell  v.  Bailey,  2  Mylne  &  K.  517,  535,  540, 
546  ;  Lyon  v.  Parker,  45  ile.  474,  directly  in  point.  It  may  be  added,  that  in 
caiTying  out  the  above  rule  it  must  be  assumed  that  the  doctrine  of  Sugden  and 
the  New  York  court  as  to  the  liability  of  the  assignee  of  the  grantor  of  a  rent  in 
fee,  charged  upon  the  land  of  the  grantor,  is  to  be  adopted  rather  than  that  said 
to  be  advanced  by  Lord  Holt.  See  Bally  v.  Wells,  supra ;  Morse  v.  Aldrich, 
19  Pick.  449  ;  Ackroyd  o.  Smith,  10  C.  B.  164,  187  ;  Norman  v.  Wells,  17  Wend. 
136  ;  Van  Rensselaer  v.  Hays,  19  N.  Y.  68,  89  ;  Masury  v.  Southworth,  9  Ohio  St. 
340,  347.  So  a  covenant  to  maintain  a  division  fence,  even  though  no  grant  is 
made  at  the  time,  is  held  to  create  a  privity  of  estate  through  the  Ujedium  of  the 
easement.  Hazlett  v.  Sinclair,  76  Ind.  488  ;  Fitch  v.  Johnson,  104  111.  111.  So 
a  covenant  to  pay  for  half  of  a  partition  wall,  Koche  v.  Ulman,  104  111.  11  ;  Rich- 
ardson V.  Tobey,  121  Mass.  457  ;  or  to  repair  an  existing  party-wall,  Hart  v.  Lyon, 
90  N.  Y.  663  ;  or  to  maintain  a  party-wall  which  is  wholly  on  covenantor's  laud, 
ilohr  V.  Parmelee,  43  N.  Y.  (S.  C.)  320  ;  and  such  an  easement  arises  from  the 
words  of  covenant,  Greene  v.  Creighton,  7  R.  I.  1  ;  Norfleet  v.  Cromwell,  64 
N.  C.  1  ;  70,  634  (qualifying  Blount  v.  Harvey,  6  Jones,  186)  ;  Bronson  v.  Coffin, 
108  Mass.  175,  180;  though  this  looks  to  affirmative  acts  on  the  part  of  the  cov- 
enantor, ibid.  ;  Brewster  v.  Kidgell,  12  Mod.  166;  Martyn  i;.  Williams,  1  Hurlst. 
&  N.  817. 

3  Trull  V.  Eastman,  3  Met.  121,  124. 

*  Brown  v.  O'Brien,  168  Mass.  484  ;  s.  c.  47  N.  E.  Rep.  195. 
6  Burden  v.  Thayer,  3  Met.  76. 


INCORPOREAL    HEREDITAMENTS.  2C3 

§  1207.  Apportioning  Rents.  —  From  the  peculiar  nature  of 
the  property  which  may  be  had  in  fee-farm  rents,  questions 
often  arise  how  far  these  may  be  subdivided  and  apportioned, 
and  what  effect  is  to  be  ascribed  to  certain  acts  done  by  the 
party  claiming  the  same.  Thus  there  is  an  entirely  different 
rule  applicable  to  rents  service  and  rents  charge,  in  respect  to 
their  apportionment  in  certain  cases.  If  one  having  a  rent 
service  purchase  a  part  of  the  land  out  of  which  it  issues,  it 
extinguishes  the  rent  pro  rata^  and  leaves  it  good  for  the  bal- 
ance. So  if  he  release  a  part  of  his  rent,  the  residue  is  not 
discharged.  1  But  if  it  be  a  rent  charge,  and  the  holder  of  the 
rent  purchases  any  part  of  the  premises,  the  rent  is  wholly  ex- 
tinct. So  if  he  releases  any  part  of  the  land  which  is  charged, 
the  balance  is  wholly  discharged,  and  the  rent  will  not  be 
apportioned.^  But  if  a  part  of  the  lands  charged  with  a  rent 
descend  to  the  grantee  of  the  rent,  it  being  the  act  of  the  law 
and  not  of  the  grantee,  the  rent  will  not  thereby  be  wholly 
extinguished,  but  only  joro  rata.^  Thus,  if  the  owner  die,  and 
the  rent  descend  to  several  heirs,  they  are  tenants  in  common, 
and  each  may  recover,  in  a  several  action  of  covenant,  his 
share  of  the  rent.*  And  whei-e  tenants  in  common  of  land^ 
charged  with  a  single  rent,  divided  the  same,  each  assuming 
his  share  of  the  rent,  and  this  was  done  w'ith  the  assent  of  the 
holder  of  the  rent,  it  was  held  to  be  a  valid  apportionment, 
exonerating  each  part  from  the  rent  due  upon  the  other  part, 
so  that  a  release  of  one  part  was  not  a  discharge  of  the  whole. 
So  if  the  grantee  of  a  rent  charge  purchase  part  of  the  land, 
and  take  an  agreement  from  the  grantor  that  he  may  distrain 
on  the  remaining  part  for  the  entire  rent,  it  would  be  regarded 
as  a  new  grant,  and  might  be  good,  though  subject  to  any  in- 
termediate incumbrance  upon  the  estate.^ 

§  1208.     Apportioning  Rents,  continued.  —  On  the  other  hand, 

1  3  Cruise,  Dig.  298  ;  Lit.  §  222  ;  Tud.  Lead.  Cas.  196  ;  Ligersoll  v.  Sergeant, 
1  Whart.  337. 

2  Lit.  §  222 ;  3  Cruise,  Dig.  301  ;  Dennett  v.  Pass,  1  Ring.  N.  C.  388 ;  Co. 
Lit.  148;  Wins.  Real  Prop.  276  ;  18  Vin.  Abr.  504;  Brooke,  Abr.  "Apportion- 
ment," 17. 

3  3  Cruise,  Dig.  303  ;  Lit.  §  224  ;  Tud.  Lead.  Cas.  197 ;  Wms.  Real  Prop.  276  ; 
Burt.  Real  Prop.  §  1121. 

4  Crnger  v.  McLaury,  41  N.  Y.  219,  223. 

6  Van  Rensselaer  v.  Chadwick,  22  N.  Y.  32,  33  ;  Lit.  §  224. 


264  INCORPOREAL    HEREDITAMENTS. 

a  rent  charge  is  susceptible  of  division,  by  grant  by  the  holder 
thereof,  without  attornment  by  the  tenant  of  the  land;  of 
apportionment,  by  descent  from,  or  devise  by,  the  holder  to 
several  persons,  and  by  levy  upon  a  part  of  such  rent.^  So 
the  holder  may  release  a  part  of  the  rent;  but  he  cannot,  as 
already  stated,  exonerate  a  part  of  the  land  charged  from  all 
rent,  without  extinguishing  the  rent  altogether.^  If  the  tenant 
of  land  burdened  with  a  rent  charge  be  evicted  of  all  the  land, 
the  rent  is  extinguished ;  but  if  of  a  part  only  of  the  land,  the 
rent  will  be  apportioned.^ 

§  1209.  Apportionment  as  to  Time.  —  At  common  law  there 
was  no  apportionment  of  rent  in  respect  to  time;  so  that  if  it 
was  for  life,  and  the  one  by  whose  life  it  was  measured  died 
before  the  day  of  payment,  it  was  lost.  But  in  England,  by 
statute  11  Geo.  II,  c.  19,  §  15,  a  ratable  rent  for  the  time  be- 
tween the  last  payment  and  the  death  of  the  lessor  for  life  is 
collectible.  And  now,  by  statute  4  <fe  5  Wm.  IV.  c.  22,  rents 
service  and  rents  charge,  which  are  determined  by  the  death  of 
a  person  between  rent-days,  are  collectible  pro  rata  upon  a  like 
principle  of  apportionment.*  And  the  same  rule  prevails  in 
most  of  the  States  by  statute,  following  the  principle  of  the 
statute  11  Geo.  II.  c.  19. ^ 

§  1210.  Escheat  —  Extinguishment. — Upon  the  death  without 
heirs  of  one  seised  of  a  rent  charge  in  fee-simple,  the  rent  does 
not  escheat  to  the  State,  but  simjjly  ceases  by  extinguishment. 
And  a  rent  may  be  extinguished  by  non-payment  for  twenty 
years.  ^ 

§  1211.  Merger.  —  If  the  owner  of  the  rent  purchase  the  fee 
of  the  land  out  of  which  it  issues,  the  two  will  merge  unless 
there  is  an  outstanding  mortgage  upon  the  land.  If  there  is, 
they  will  nof^ 

1  Farle}'  v.  Craig,  11  N.  J.  262  ;  Rivis  v.  Watson,  5  M.  &  W.  255;  3  Cruise, 
Dig.  304;  Ryerson  v.  Quackenbush,  26  N.  J.  236,  251  ;  Gilbert,  Rents,  155,  156  ; 
Cook  V.  Brightly,  46  Penn.  St.  440. 

2  Burt.  Real  Prop.  §  1123  ;  Farley  v.  Craig,  11  N.  J.  262. 

3  3  Cruise,  Dig.  304  ;  Co.  Lit.  148  h  ;  Tud.  Lead.  Cas.  198. 

4  Tud.  Lead.  Cas.  184  ;  Wms.  Real  Prop.  27. 

6  Hill,  Trust.  395,  Wharton's  note.    See  Mass.  Pub.  Stat.  c.  121,  §§  3,  5,  and  8, 
as  to  apportionment  of  rents,  whether  in  fee,  for  life,  or  years. 
6  Tud.  Lead.  Cas.  199  ;  Owen  v.  De  Beauvoir,  16  M.  &  W.  547. 
'  Cook  V.  Brightly,  46  Penn.  St.  430. 


FRANCHISES.  265 


CHAPTER  LIII. 

INCORPOREAL    HEREDITAMENTS  —  FRANCHISES. 

§  1212.  Franchises  defined. 

1213.  By  whom  franchises  usually  held. 

1214.  What  franchises  treated  of. 

1215.  Ferries. 

1216.  Of  ferry  grants. 

1217.  Rights  of  ferry  owners. 

1218.  Exclusive  enjoyment  of  ferries. 

1219.  Liability  of  ferry  owner. 

1220.  Of  bridges. 

1221.  Bridge  charters  contracts. 

1222.  Franchises  subject  to  eminent  domain. 

1223.  Extent  of  legislature's  right  to  grant  new  charter  impairing  value  of 

the  old. 

1224.  Franchises  liable  for  owner's  debts. 

§1212.  Franchises  defined.  —  Another  class  of  what  are 
called  incorporeal  hereditaments  is  franchises,  which  are  de- 
fined to  be  special  privileges  conferred  by  government  on 
individuals,  and  which  do  not  belong  to  the  citizens  of  the 
country  generally  by  common  right.  In  this  country,  no  fran- 
chise can  be  held  which  is  not  derived  from  the  law  of  the 
State.i 

§  1213.  By  whom  Franchises  usually  held.  —  These  privileges 
are  usually  granted  to  and  held  by  corporations,  created  for 
the  special  purpose  of  exercising  them,  such  as  bridge,  rail- 
road, or  turnpike  corporations  ;  and  are  still  called  heredita- 
ments^ although  inheritability  cannot  properly  be  predicated  of 
property  held  by  corporations,  as  these  can  have  no  heirs.'-^ 
But  in  an  early  case  in  Massachusetts,  where  a  right  of  ferry 

1  Bank  of  Augusta  v.  Earle,  13  Pet.  519,  595  ;  Ang.  &  Ames,  Corp.  §  4.  In 
England  it  is  now  granted  by  the  legislature  and  not  by  the  crown.  1  Cooley, 
Black.  274,  n.  The  legislature  may  authorize  improvements  in  navigable  rivers 
and  tolls  to  be  taken  therefor,  though  such  rivers  are  made  free  common  liighways 
by  the  State  constitution.  Wis.  Eiv.  Lnp.  Co.  v.  Mansur,  43  Wis.  255.  This 
is  the  exercise  of  a  police  power  retained  by  the  States.  Craig  v.  Kline,  65  Peun. 
St.  399. 

2  3  Kent,  Com.  459. 


266  ■  INCORPOREAL    HEREDITAMENTS. 

had  been  enjoyed  and  exercised  by  individuals  for  more  than 
eighty  years,  the  claimant  of  the  right  was  permitted  to  show, 
by  parol,  the  existence  of  the  ferry,  his  seisin  of  it,  its  con- 
tinued use,  and  the  exercise  of  the  right  to  take  toll.  And  the 
property  in  the  same  was  held  to  be  a  priA-ate  estate  in  fee, 
without  being  appendant  to  a  corporeal  tenement.^  • 

§  1214.  What  Franchises  treated  of.  —  It  is  proposed,  how- 
ever, to  treat,  and  that  but  briefly,  of  only  two  or  three  of 
these  franchises,  as  to  do  it  more  fully  would  involve  an  ex- 
tended consideration  of  the  law  of  corporations,  of  which  the 
nature  of  the  present  work  will  not  admit.  These  are  the 
right  of  maintaining  ferries,  bridges,  and,  incidentally,  rail- 
roads. The  privilege  of  making  a  road  or  maintaining  a  ferry, 
and  taking  tolls  for  the  use  thereof,  is  a  franchise ;  and  so  is 
that  of  constructing  and  maintaining  a  railroad.  Nor  is  it 
necessary  that  it  should  be  a  monopoly  in  order  to  its  having 
the  character  of  a  franchise.  The  right  of  constructing  and 
maintaining  a  railroad,  whether  within  or  without  a  city,  rests 
upon  its  being  of  public  benefit ;  and  the  exercise  of  the  right 
to  take  lands  for  it  is  a  proper  exercise  of  eminent  domain, 
under  a  grant  of  the  government  of  the  State.^  Each  of  these 
comes  under  the  definition  of  a  franchise,  whether  regarded,  as 
in  England,  as  a  privilege  in  the  hands  of  a  subject  which  the 
king  alone  formerly  could  grant,^  or,  as  in  this  country,  a 
privilege  or  immunity  of  a  public  nature  which  cannot  be 
legally  exercised  without  legislative  grant,*  and  which,  in  the 
one  country  or  the  other,  is  held  to  constitute  a  franchise.^ 
Under  this  definition,  also,  would  be  included  the  right  of 
banking  by  a  company  or  association,  where  the  authority  to 
act  as  such  is  granted  by  the  legislature.^ 

1  Chadwick  v.  Haverhill  Br.,  2  Dane,  Abr.  686,  687  ;  Stark  v.  M'Gowen,  1  Nott 
&  McC.  387,  393  ;  Clark  v.  White,  5  Bush,  353  ;  Conway  v.  Taylor,  1  Black,  603. 

2  Bush  V.  Peru  Br.,  3  Ind.  21  ;  Milhau  v.  Sharp,  27  N.  Y.  611,  619  ;  Beekman 
V.  Saratoga  R.  R.,  3  Paige,  45;  Davis  v.  The  Mayor,  14  N.  Y.  506,  523;  Clarke  v. 
Rochester,  24  Barb.  446,  481  ;  Bloodgood  v.  Mohawk  R.  R.,  18  Wend.  9 ;  McRoberts 
V.  Washbnrne,  10  Minn.  23,  27. 

3  2  Bl.  Com.  37;  Finch,  Law,  164. 

*  People  V.  Utica  Ins.  Co.,  15  Johns.  358,  387. 
6  Ang.  &  Ames,  Corp.  §  737. 

6  People  V.  Utica  Ins.  Co.,  15  Johns.  358,  379;  Prov.  Bk.  v.  Billings,  4  Pet.  514, 
516,  560. 


FRANCHISES.  267 

§  1215.  Ferries,  that  is,  rights  of  carrying  passengers  across 
streams,  or  bodies  of  water,  or  arms  of  the  sea,  from  one 
point  to  another,  for  a  compensation  paid  by  the  way  of  a 
toll,  are,  by  common  law,  deemed  to  be  franchises,  and  could 
not,  in  England,  be  set  up  without  the  king's  license,  and  in 
this  country  witiiout  a  grant  of  the  legislature  as  representing 
the  sovereign  power,  and  do  not  belong  to  the  riparian  pro- 
prietors of  the  soil.^  Nor  does  it  depend  upon  the  right  to  or 
property  in  the  water,  on  which  it  is  exercised ;  for  the  right 
to  the  water  may  belong  to  one,  and  that  of  the  ferry  to 
another.2  The  right  of  ferry  does  not  confer  or  enlarge,  take 
away  or  impair,  the  right  of  general  navigation  through  the 
same  waters.  And  though  it  implies  a  right  to  land  passen- 
gers on  either  bank,  as  occasion  may  require,  it  does  not  de- 
pend upon  the  ownership  of  the  soil  of  the  banks  of  the  water.^ 
Nor  can  the  owners  of  the  banks  set  up  and  maintain  ferries.* 

§  1216.  Of  Ferry  Grants.  —  When  the  franchise  of  a  ferry 
is  granted  to  two  persons,  both  must  accept  it  in  order  to  its 
becoming  a  valid  grant.  If  granted  to  more  than  two,  it  must 
be  accepted  by  a  major  part  of  the  grantees  ;  and  when  ac- 
cepted, there  are  certain  obligations  mutually  assumed  between 
the  government  and  the  grantee  of  the  franchise,  by  which 
the  latter,  among  other  things,  undertakes  to  provide  safe  and 
convenient  accommodations  for  the  public  at  all  suitable  times, 
a  safe  boat  with  convenient  ferry-ways,  or  modes  of  access  to 
and  "departure  from  the  same,  with  a  sufficient  number  of  suit- 
able men  to  take  charge  of  the  same.  On  the  other  hand,  he 
becomes  entitled  by  his  franchise  to  receive  the  prescribed  com- 
pensation, as   toll,  from  the   persons  making  use  of  the  same. 

1  Chenango  Br.  v.  Paige,  83  N.  Y.  178.  It  belongs  to  the  State  legislatures  to 
license  them  over  navigable  rivers,  notwithstanding  the  powers  of  tie  United  States 
to  regulate  commerce.     Conway  v.  Taylor,  1  Black,  603. 

2  Fay,  Petr.,  15  Pick.  243,  249,  253  ;  Mills  v.  Co.  Coram.,  3  Scaram.  53  ;  Mc- 
Roberts  v.  Washburne,  10  Minn.  27. 

»  Fay,  Petr.,  15  Pick.  243,  254 ;  Peter  v.  Kendal,  6  B.  &  C.  703. 

*  McRoberts  v.  Washburne,  10  Minn.  27  ;  Fall  v.  Sutter  Co.,  21  Cal.  237,  252. 
But  on  a  fresh- water  stream  the  riparian  proprietors  may  run  ferries  or  build  bridges 
for  their  own  accommodation  without  legislative  authority,  so  long  as  they  do  not 
interfere  with  the  public  easement.  Ex  parte  Jennings,  6  Cow.  518  ;  Chenango  Br. 
V.  Paige,  83  N.  Y.  178 ;  Greer  v.  Haugabook,  47  Ga.  282.  In  Arkansas,  such  pro- 
prietors have  by  statute  a  right  to  a  ferry  over  public  water,  Haynes  v.  Wells, 
26  Ark.  464.     As  to  the  dehnition  of  public  and  navigable  waters,  see  post,  §  2335. 


268  INCORPOREAL   HEREDITAMENTS. 

And  ior  auy  failure  on  his  part  he  is  liable  to  any  person  who 
may  be  injured  thereby.^  lu  this  way  the  ferry  becomes  prop- 
erty,—  an  incorporeal  hereditament,  the  owner  of  which 
for  the  public  convenience,  being  obliged  by  law  to  peiform 
certain  public  services,  must,  as  a  reasonable  equivalent,  be 
protected  in  his  property .^  A  ferry  license  in  Iowa  passes,  on 
the  death  of  the  licensee,  to  his  representatives  as  pro))erty.^ 

§  1217.  Rights  of  Ferry  Owners.  —  The  mode  of  creating,  as 
well  as  the  extent  of  the  powers  and  duties  incident  to,  the 
ownersliip  of  ferries,  is  generally  regulated  in  each  State  by  its 
own  legislation.*  As  a  general  proposition,  whoever  has  a 
right  to  a  ferry  has  a  right  to  enjoy  it  free  from  any  interfer- 
ence therewith  by  a  stranger.  Such  interference  would  con- 
stitute what  is  called  a  nuisance,  and  might  be  restrained  by 
an  injunction  upon  the  wrong-doer,  issued  by  a  court  of  chan- 
cery at  the  instance  of  the  owner  of  the  ferry .^  And  this 
would  apply,  if,  after  the  right  to  establish  one  ferry  had  been 
granted,  another  were  set  up  so  near  it  as  to  take  away  the 
travel  which  properly  belonged  to  the  first.®  But  a  court  would 
not,  in  such  case,  grant  an  injunction,  if  the  owner  of  the  fran- 
chise should  neglect  his  duty  in  accommodating  the  public 
travel.'^ 

§1218.  Exclusive  Eujoyment  of  Perries. — The  great  diffi- 
culty is  in  drawing  the  line  within  which  this  rule  is  con- 
fined. If  there  were  but  one  ferry,  travel  miglit  find  it  and 
use  it  at  the  distance  of  miles.  But  the  grant  of  sucli  a  ferry 
would  not  preclude  the  establishment  of  a  new  one  within  such 
reasonable  distance  as  the  public  convenience  requires,  though 

1  Chadwick  v.  Hitverhill  Br,,  2  Dane,  Abr.  686  ;  3  Kent,  Com.  458  ;  Willoughby 
V.  Horri.lge,  12  C.  B.  742,  747  ;  Ferrel  v.  Woodward,  20  Wis.  458,  461. 

2  Chadwick  v.  Haverhill  Br.,  supra.  See  13  Am.  L.  Eeg.  513,  for  an  elaborate 
article  upon  Ferries.     M'Roberts  v.  Washburne,  10  Minn.  27. 

3  Lippencott  v.  Allander,  27  Iowa,  460. 

*  Conway  v.  Taylor,  1  Black,  603.  And  each  State  may  create  a  feiTy  upon  the 
intervening  river  without  the  concurrence  of  the  other. 

6  Midland  Ferry  Co.  v.  Wilson,  28  N.J.  Eq.  537  ;  Collins  v.  Ewing,  51  Ala.  101  ; 
"Walker  v.  Armstrong,  2  Kan.  198.  But  see  Letton  v.  Goodden,  L.  R.  2  Eq.  123, 
aliter,  where  the  plaintiff  was  under  no  duty  to  maintain  the  ferry. 

6  2  Bl.  Com.  219  ;  Ogden  v.  Gibbons,  4  Johns.  Ch.  150,  160  ;  Newburgh  Turn- 
pike V.  Miller,  5  .Johns.  Ch.  101,  111;  Patterson  v.  Wollman,  5  X.  Dak.  608  ;  s.  c. 
67  N.  W.  Rep.  1040. 

7  Ferrel  v.  Woodward,  20  Wis.  458,  462  ;  Walker  v.  Armstrong,  2  Kan.  198. 


FRANCHISES.  2G9 

it  should  have  the  effect  to  withdraw  some  travel  from  the 
first.  Tliis  will  be  again  considered  in  respect  to  the  erection 
of  two  or  more  toll-bridges,  as  these  are  governed  by  similar 
rules  of  law.  In  one  case  Chancellor  Kent  held  that  the  doc- 
trine excluded  "all  contiguous  and  injurious  occupation."^ 

§  1219.  Liability  of  Ferry  Owner.  —  If  the  proprietor  of  the 
ferry  abuse  or  neglect  the  franchise,  or  fail  to  exercise  it  so  as 
to  meet  the  reasonable  requirements  of  the  public,  the  govern- 
ment may  repeal  the  grant,  and  deprive  hira  thereof,  upon  a 
judgment  in  a  process  of  scire  facias  or  quo  warranto,  sued  out 
against  him,  based  upon  such  abuse  or  neglect.^  But  mere 
negligence  on  the  part  of  the  proprietor  does  not  destroy  the 
right  and  property  therein.^  The  proprietor,  however,  may  be- 
come liable  for  injuries  resulting  from  such  neglect;  as  where 
a  traveller's  horse  was  injured  by  a  faulty  and  defective  con- 
struction of  a  railing  to  a  slip,  over  which  the  horse  passed 
from  the  boat  to  the  landing-place  at  the  bank  of  the  river,  it 
was  held  that  the  company  were  liable,  although  the  horse  was 
led  and  managed  at  the  time  by  its  owner,  a  passenger  on  the 
boat.* 

§  1220.  Of  Bridges.  —  What  has  been  said  of  ferries  will 
substantially  apply  to  the  case  of  bridges.  The  right  to  con- 
struct a  bridge  across  a  river  or  stream  of  water,  where  the 
same  is  necessary  to  accommodate  the  public  travel,  and  to  de- 
mand toll  of  persons  using  the  same,  is  also  a  franchise  to  bo 
granted  and  regulated  by  acts  of  legislation.^ 

§  1221.  Bridge  Charters  Contracts.  —  If  the  charter  for  con- 
structing such  a  bridge  should  contain  a  restriction  as  to  the 
distance  within  which  another  bridge  should  be  erected,  the 
legislature  could  not  constitutionally  authorize  it  to  be  done. 
The  charter  would  be  a  contract  where  the  consideration  on  the 
one  side  is  the  rendering  a  benefit  to  the  public  in  doing  what 

1  Ogden  V.  Gibbons,  4  Johns.  Cli.  150,  160  ;  Fall  v.  Sutter  County,  21  Cal.  237, 
252. 

2  Jefferaonville  v.  Ferryboat,  35  Ind.  19;  Greer  i;.  Haugabook,  47  Ga.  282. 
8  Peter  v.  Kendal,  6  B.  &  C.  703. 

4  Willoughby  v.  Horridge,  12  C.  B.  742. 

6  Chenango  Br.  v.  Paige,  83  N.  Y.  178.  But  if  the  stream  be  a  fresh-water 
one,  riparian  proprietors  may  build  bridges,  if  they  do  not  take  tolls  or  interfere 
with  the  public  easement.     Ibid. 


270  INCORPOREAL   HEREDITAMENTS. 

the  franchise  authorizes  to  be  done  ;  and,  on  the  otlier,  the  ad- 
vantage to  be  derived  from  the  exercise  of  such  franciiise.  And 
detracting  from  the  profit  thereof,  would  be  a  violation  of  the 
obligation  of  the  contract.  And  the  same  rule  would  be  ap- 
plied in  respect  to  any  two  competing  franchises,  like  ferries, 
bridges,  or  railroads.^ 

§  1222.  Franchises  subject  to  Eminent  Domain.  —  But  this 
does  not  affect  the  right  to  exercise  eminent  domain  over  the 
franchise  of  existing  corporations  in  the  same  manner  as  over 
any  private  property.  Thus  a  legislature  may  authorize  a 
bridge  to  be  erected  so  as  to  occupy  and  destroy  a  ferry,  or  a 
railroad  company  or  a  city  to  appropriate  the  bridge  property 
of  a  company,  and  thereby  destroy  its  franchise  ;  or  even  may 
authorize  one  railroad  company  to  destroy  the  franchise  of  an- 
other, in  constructing  its  own  road  under  the  exercise  of  this 
power  of  eminent  domain,  provided  compensation  is  at  the 
same  time  secured  to  the  party  thus  deprived  of  the  prior  fran- 
chise.2  And  though  the  new  franchise  might  diminish  some- 
what the  one  already  existing,  it  is  competent  for  the  legislature 
to  create  it,  and  authorize  it  to  be  enjoyed,  provided  the 
injury  thereby  resulting  to  the  first  can  be  compensated  in 
damages  and  provision  therefor  is  properly  made ;  though  it 
will  be  remarked,  that  the  case  where  this  was  applied  was 
where  the  franchises  were  of  an  entirely  different  nature,  — 
the  one  being  the  flowing  of  lands  for  mill  purposes,  the  other 
of  maintaining  a  railroad.  It  was  not  the  case  of  the  erection 
of  a  bridge  within  the  limits  of  restriction  prescribed  by  the 
terms  of  the  grant  of  a  prior  bridge  franchise.^ 

1  Boston  &  Low.  R.  R.  v.  Salem  &  Low.  R.  R.,  2  Gray,  1  ;  Newhurgh  Turnpike 
r.  Miller,  5  Johns.  Ch.  10]  ;  Redf.  Ruilw.  131  ;  Dartmouth  Coll.  v.  Woodward, 
4  Wheat.  518,  638  ;  Milhau  v.  Sharp,  27  N.  Y.  611,  620  :  People  v.  Sturtevant, 
9  N.  Y.  263,  273;  M'Roherts  v.  Washburne,  10  Minn.  23,  29.  And  a  grant  of  a 
right  to  build  and  maintain  an  exclusive  toll-bridge  is  a  contract.  The  Binghamp- 
ton  Br.,  3  Wall.  51. 

2  Central  Br.  v.  Lowell,  4  Gray,  474  ;  West  Riv.  Br.  v.  Dix,  6  IIow.  507  ; 
White  Riv.  Turnpike  ;;.  Vt.  Cent.  R.  R.,  21  Vt.  590 ;  Richmond  R.  R.  v.  Louisa 
R.  R.,  13  How.  71,  83;  Redf.  Railw.  129,  130;  Boston  Water  Power  Co.  v. 
Boston  &  Wore.  R.  R.,  23  Pick.  360 ;  Boston  &  Low.  R.  R.  v.  Salem  &  Low.  R.  R., 
2  Gray,  1  ;  Matter  of  Kerr,  42  Barb.  119;  M'Roberts  v.  Washburne,  10  Minn.  28  ; 
New  York,  etc.  R.  E.  v.  Boston,  etc.  R.  R.,  36  Conn.  196,  198. 

3  Boston  Water  Power  Co.  v.  Boston  &  Wore.  R.  R.,  23  Pick.  360,  399.     And 


FRANCHISES.  271 

§  1223.  Extent  of  Legislature's  Right  to  grant  a  New  Charter 
impairing  the  Value  of  the  Old.  —  Among  the  leading  cascs  which 
have  occurred  where  this  question  has  been  raised  was  that  of 
the  Charles  River  Bridge  v.  Warren  Bridge,  which  was  heard 
first  before  the  Supreme  Court  of  Massachusetts,  and  after- 
wards by  the  Supreme  Court  of  the  United  States.  From  the 
principles  established  in  this  and  similar  cases  cited  below,  the 
rule  upon  the  subject  seems  to  be,  that  though  such  charters 
are  contracts  which  a  legislature  may  not  violate  any  more 
than  an  individual,  yet  the  charter  and  the  contract  are  to  be 
construed  strictly,  and  nothing  is  to  be  taken  by  implication. 
If,  therefore,  in  the  first  grant  there  were  no  terms  of  restric- 
tion of  power  in  granting  other  franchises,  or  expressly  limiting 
the  exercise  of  this  power,  the  legislature  may  authorize  the 
erection  of  a  new  bridge,  though  its  effect  would  obviously  be 
to  destroy  the  value  of  the  first,  as  was  the  case  with  the 
Cliarles  River  Bridge.^ 

§  1224.  Franchises  liable  for  Owner's  Debts.  —  The  franchises  of 
corporations  authorized  to  receive  tolls  are  liable  to  be  talcen 
and  sold  for  the  debts  of  the  corporation  [provided  the  authority 
be  given  by  statute,  but  not  otherwise.^] 

the  rule  is  the  same  even  where  the  new  grant  is  identical  with  the  franchise  taken. 
Eastern  R.  R.  v.  Bost.  &  M.  R.  R.,  Ill  Mass.  125,  130. 

1  Charles  Riv.  Br.  v.  Warren  Br.,  7  Pick.  344;  s.  c.  11  Pet.  420  ;  2  Greenl. 
Cruise,  Dig.  66,  n. ;  Piscataqua  Br.  v.  N.  H.  Bridge,  7  N.  H.  35,  59  ;  Richmond 
R.  R.  V.  Louisa  R.  R.,  13  How.  71,  81  ;  Redf.  Railw.  131  ;  Fall  v.  Sutter  County, 
21  Cal.  237,  252,  253  ;  Fort  Plain  Br.  v.  Smith,  30  N.  Y.  44,  61 ;  Mohawk  Br, 
V.  Utica  R.  R.,  6  Paige,  554  ;  Oswego  Falls  Br.  v.  Fish,  1  Barb.  Ch.  547  ;  Bush  v. 
Peru  Br.  Co.,  3  Ind.  21  ;  Mills  v.  St.  Clair  Co.,  8  How.  569,  581;  M'Roberts  v. 
Washburne,  10  Minn.  28 ;  Turnpike  Co.  v.  State,  3  Wall.  210.  A  long-continued 
private  ferry,  maintained  by  a  riparian  owner,  is  no  bar  to  the  establishment  of  a 
bridge  at  the  same  place.  Hudson  v.  Cuero  L.  Co.,  47  Tex.  56  ;  Jones  v.  Keith, 
37  Tex.  394. 

'^  Gue  V.  Tide  Water  Canal  Co.,  24  How.  257  ;  Ammant  v.  New  Alexandria  «& 
P.  T.  R.,  13  S.  &  R.  210  i  and  see  cases  cited  iu  a  note  to  this  case  in  15  Am. 
Dec.  595. 


INCORPOREAL   HEREDITAMENTS. 


CHAPTER  LIV. 

INCORPOREAL    HEREDITAMENTS  —  EASEMENTS. 

§  1225.  Definition. 

1226.  What  rights  embraced  in  the  term. 

1227.  Easements  distinguished  from  commons. 

1228.  Easements  distinguished  from  the  laud  itself. 

1229.  Two  estates  must  exist. 

1230.  Affirmative  and  negative  easements. 

1231.  How  easements  may  be  acquired. 

1232.  Of  prescriptive  easements. 

1233.  Of  easements  by  express  grant. 

1234.  Easements  pass  with  dominant  estate. 

1235.  Of  the  creation  of  implied  or  equitable  easements. 

1236.  Ways  of  necessity. 

1237.  Location  of  way  of  necessity. 

1238.  Way  implied  from  street  boundary. 

1239.  Other  easements  of  necessity. 

1240.  Effect  of  dividing  the  dominant  estate. 

1241.  Of  covenants  which  equity  fastens  on  land  as  easements. 

1242.  How  easements  created  in  favor  of  owners  of  distinct  parcels. 

1243.  Further  examples. 

1244.  Easements  implied  in  grants  of  houses,  etc. 

1245.  Necessity  the  test  in  such  cases. 

1246.  Further  illustration. 

1247.  Easements  implied  from  adaptation  of  premises. 

1248.  Of  easements  created  by  implied  reservation. 

1249.  Easements  acquired  by  prescription. 

1250.  Prescription,  whether  conclusive  ox  prima  facie  evidence  of  a  grant. 

1251.  Limits  of  prescriptive  easements. 

1252.  Rec]uisitps  of  prescriptive  user. 

1253.  Enjoyment  must  be  adverse. 

1254.  Requisites  of  an  adverse  use. 

1255.  There  must  be  some  one  capable  of  granting. 

1256.  One  test  of  adverse  Use. 

1257.  Permissive  use  not  prescriptive. 

1258.  Another  illustration. 

1259.  Of  the  owner's  knowledge  and  acquiescence. 

1260.  Enjoyment  must  be  continuous  and  uninterrupted. 

1261.  Time  of  adverse  user. 

1262.  Time,  how  computed. 

1263.  Public  cannot  acquire  ]irescriptive  right. 

1264.  Easement  not  necessarily  exclusive. 

1265.  Ways  are  of  several  different  kinds. 

1266.  Use  of  way  strictly  limited. 

1267.  Highway  crossing. 

1268.  Mode  of  use  restricted  to  terms  of  grant. 

1269.  Burden  of  servient  estate  must  not  be  increased. 


EASEMENTS.  273 

§  1270.  Use  restricted  to  original  purpose. 

1271.  Of  obstructions  to  tlie  way. 

1272.  Wlio  bound  to  repair  a  way. 

1273.  Of  loss  of  w'ay  by  non-user. 

1274.  Loss  of  prescriptive  right  by  non-user. 

1275.  Of  parol  surrender  of  way. 

1276.  What  acts  ojierate  as  an  abandonment. 

1277.  Easements  of  light  and  air. 

1278.  No  rights  acquired  by  merely  building. 

1279.  Prescriptive  easement  arises  from  presumed  covenant. 

1280.  Implied  grant  of  light  and  air  easement. 

1281.  Prescriptive  light  and  air  in  America. 

1282.  Light  and  air  by  express  grant. 

1283.  Easement  of  prospect. 

1284.  Rights  of  riparian  proprietors. 

1285.  Priority  of  use  determines  milling  rights. 

1286.  Foregoing  rules  inapplicable  to  percolations  or  surface  water. 

1287.  Percolations,  how  distinguished  from  watercourses. 
12S8.  Aqueducts. 

1289.  Who  bound  to  make  repairs. 

1290.  Springs  fed  from  percolations. 

1291.  Springs  fed  from  percolations  —  Illustrations. 

1292.  No  prescriptive  rights  in  underground  percolations. 

1293.  Right  of  upland  to  natural  drainage  over  lowland. 

1294.  Artificial  watercourses. 

1295.  Right  to  cut  ice. 

1296.  Natural  right  to  lateral  support. 

1297.  Lateral  support  —  Streets. 

1298.  Foregoing  principles  applied  to  mines. 

1299.  Of  support  of  adjoining  houses. 

1300.  Party  walls.    ' 

1301.  Party  walls,  continued. 

1302.  Easements  of  part  owners  of  a  house. 

1303.  Easement  to  carry  on  offensive  trade. 

1304.  Easement  of  fishery. 

1305.  Easement  of  division  fence. 

1306.  Right  to  maintain  wharf. 

1307.  Easements  acquired  by  custom. 

1308.  No  customary  rights  of  common. 

1309.  Remedies  for  obstructions  to  easements. 

1310.  Easement  may  be  destroyed  or  determined  in  various  ways. 

1311.  Mere  non-user  insufficient. 

1312.  Acts  which  work  abandonment. 

1313.  Easement  destroyed  by  executed  license. 

1314.  Change  of  use  evidencing  abandonment. 

1315.  Illustration. 

1316.  Merger  of  dominant  and  servient  estates. 

1317.  Exceptions. 

1318.  Of  mines  and  mining  rights. 

1319.  California  mining  claims. 

§  1225.    Definition. —  Easements  answer  to  the  predial  servi- 
tudes of  the  civil  law,  and  consist  of  a  right  in  the  owner  of 

VOL.   II.  — 18 


274     ■  INCORPOREAL    HEREDITAMENTS. 

one  parcel  of  land,  by  reason  of  such  ownership,  to  use  the 
land  of  another  for  a  special  purpose  not  inconsistent  with  a 
general  property  in  the  owner.  The  parcel  to  whose  ownership 
the  right  is  attached  is  called  the  dominant,  while  that  in  or 
over  which  the  right  is  to  be  exercised  is  called  the  servient, 
estate.  And  as  these  rights  are  not  personal,  and  do  not 
change  witli  the  persons  who  may  own  the  respective  estates, 
it  is  very  common,  when  treating  of  easements,  to  personify 
the  estates  as  themselves  enjoying  them  or  being  subject  to 
theni,^ 

§  1226.  What  Rights  embraced  in  the  Term.  —  Among  the  rights 
and  privileges  which  are  embraced  under  the  name  of  ease- 
ments is  that  of  ivay,  or  the  right  by  the  owner  of  one  parcel  of 
land  to  pass  over  the  land  of  another ;  of  water,  or  the  right  of 
drawing  water  from,  through,  or  across  the  servient  for  the 
benefit  of  the  dominant  estate,  or  of  discharging  water  from  the 
dominant  over  or  upon  the  servient  estate,  and  the  like  ;  of 
light  and  air,  or  of  having  light  or  air  come  uninterruptedly  to 
the  dominant  over  or  across  the  servient  estate ;  and  of  supjjort 
of  the  soil  or  buildings  of  the  dominant  by  the  adjacent  soil  or 
buildings  of  the  servient  estate,  and  oi  party-walls. 

§  1227.  Easements  distinguished  from  Commons.  —  These  ease- 
ments are  strictly  incorporeal  hereditaments,  though  imposed 
upon  corporeal  property,  and  consist  simply  of  a  right  which  is 
in  its  nature  intangible,  and  incapable  of  being  a  subject  of 
livery.2  They  are,  therefore,  to  be  distinguished  from  what 
was  called  in  the  early  books  a  profit  a  prendre,  which  consists 
of  a  right  to  take  a  part  of  the  soil  or  produce  of  land,  such  as 
sand,  clay,  grass,  trees,  and  the  like,  in  which  there  is  a  sup- 
posable  value.  Thus,  as  there  is  properly  no  property  in  water 
beyond  its  use,  a  man  may  have  an  easement  to  enter  upon 

1  Tennes  de  la  Ley,  "  Easement ; "  3  Kent,  Com.  435  ;  Gale  &  What.  Ease.  1  ; 
Walk.  Am.  Law,  265  ;  Tud.  Lead.  Cas.  107.;  Wolfe  v.  Frost,  4  Sandf.  Ch.  72,  89  ; 
Hills  V.  Miller,  3  Paige,  254  ;  Case  of  Private  Eoad,  1  A.shm.  417  ;  Bost.  Water 
Power  Co.  v.  Bost.  &  Wore.  R.  R.,  16  Pick.  512,  522.  Thoush  sometimes  used  as 
convertible  terms,  easements  are  generally  understood  to  be  the  benefits  which 
cue  estate  enjoys  in  or  over  another,  while  servitudes  imply  the  burdens  that  are 
imposed  upon  an  estate  in  favor  of  another  ;  the  dominant  enjoying  the  easement, 
the  servient  sustaining  the  burden.     Washb.  Ease.  5. 

2  Orleans  Nav.  Co.  v.  Tlie  ^Layor,  2  Martin,  214,  228 ;  lust.  Lib.  2,  T.  2 ; 
Hewlins  v.  Shippam,  5  B.  &  C.  221. 


EASEMENTS.  275 

another's  land  and  take  water  therefrom  for  the  benefit  of 
his  own  estate.  But  he  may  not,  as  an  easement,  have  a  right 
to  go  upon  another's  land  to  fish  in  these  waters  and  take  fish 
therefrom,  because  it  is  in  tlio  nature  of  a  profit  out  of  it.^ 

§  1228.  Easements  distinguished  from  the  Land  itself.  — As  an 
illustration  of  the  distinction  there  is  between  the  grant  of 
land,  which  is  a  thing  tangible  and  a  subject  of  livery,  and  of 
an  easement,  which  is  otherwise,  —  if  A  grants  to  13  "  a  ditch," 
and  it  means  the  land  occupied  by  flowing  or  stagnant  water,  it 
is  a  grant  of  the  soil  and  freehold  of  the  parcel  thus  limited  and 
defined.  But  if,  from  the  context,  it  means  a  privilege  of  con- 
ducting water  within  a  certain  space  of  his  land  for  use  else- 
where, it  is  a  mere  right  or  easement  of  B  in  A's  land.^  So  a 
grant  of  the  "  use  and  benefit  "  of  a  passage-way  gives  an  ease- 
ment and  not  the  freehold  of  the  soil.^  But  the  grant  of  a 
parcel  of  land  to  be  used  as  a  way  is  a  grant  of  the  fee  of  the 
land,  and  not  of  an  casement  only.^ 

§  1229.  Two  Estates  must  exist.  —  The  definition  given  above 
implies,  that,  for  an  easement  to  exist,  there  must  be  two 
estates  in  regard  to  which  it  is  predicated,  and  that  it  is  not 

1  Wolfe  V.  Frost,  4  Saiulf.  Ch.  72  ;  Bailey  v.  Appleyard,  3  Nev.  &  P.  257  ; 
Manning  v.  Wasdale,  5  Ad.  &  E.  758  ;  Tud.  Lead.  Cas.  107  ;  Bland  v.  Lipscombe, 
4  E.  &  B.  714,  n. ;  Race  v.  Ward,  id.  702  ;  Waters  v.  Lilley,  4  Pick.  145  ;  Gate- 
ward's  Case,  6  Rep.  60  ;  Bost.  Water  Pow.  Co.  v.  Bost.  &  Wore.  R.  R.,  16  Pick. 
512,  522  ;  though  the  use  of  the  easement  may  deprive  the  owner  of  the  land  of 
the  means  of  using  it,  as  by  flowing  water  upon  it  for  working  a  mill  on  the 
dominant  estate.  The  distinction  between  a  profit  a  prendre  and  a  proper  ease- 
ment or  custom  turns  mainly  on  the  point  that  the  enjoyment  of  the  former  by 
an  unlimited  or  fluctuating  bodj"-,  such  as  the  "  public  "  or  the  "inhabitants" 
of  a  village,  would  destroy  the  property.  See,  per  Wightman,  J.,  4  E.  &  B.  708  ; 
Rivers  v.  Adams,  3  Exch.  Div.  361 ;  Chilton  v.  London,  7  Ch.  Div.  735  ;  Constable 
V.  Nicholson,  14  C.  B.  n.  s.  230  ;  Goodman  v.  Saltash,  L.  R.  7  App.  Cas.  633,  648  ; 
or,  as  it  is  sometimes  stated,  "you  cannot  by  custom  claim  a  profit  a  prendre  in 
alieno  solo,"  per  Lord  Cairns,  id.  648,  654.  But  a  profit  d.  prendre  may  be  pre- 
scribed for  by  the  holder  of  a  particular  tenement,  De  la  Warr  v.  Miles,  17  CIi.  Div. 
535  ;  Melviu  v.  Whiting,  13  Pick.  184  ;  WooUver  v.  Stuart,  38  Ohio  St.  186  ;  and 
the  right  to  take  ice,  though  property  and  a  profit  d,  prendre,  may  as  an  easement 
pass  by  implied  grant,  Huntington  y..Asher,  96  N.  Y.  604  ;  but  the  right  must  be 
clearly  appurtenant,  ibid.  ;  Blewitt  v.  Tregonning,  3  Ad.  &  E.  554  j  Goodman  v. 
Saltash,  L.  R.  7  App.  Cas.  633,  658,  per  Ld.  Blackburn. 

2  Reed  v.  Spicer,  27  Cal.  57. 

3  Codman  v.  Evans,  1  Allen,  443,  447. 

4  Coburn  v.  Coxeter,  51  N.  H.  158,  166. 


276  INCORPOREAL    HEREDITAMENTS. 

affected  by  any  change  of  ownersliip  of  the  respective  estates, 
except  that  they  must  belong  to  different  persons,  for  no  man 
can  technically  be  said  to  have  an  easement  in  his  own  land. 
And  the  consequence  is,  that,  if  the  same  person  becomes  owner 
in  fee-simple  of  both  estates,  the  easement  is  extinguished.^ 

S  1230.  Affirmative  and  Negative  Easements.  —  These  ease- 
ments are  divided  into  affirmative,  or  those  where  the  servient 
estate  must  permit  something  to  be  done  thereon,  as  to  pass 
over  it  or  discharge  water  upon  it,  and  the  like  ;  and  negative, 
where  the  owner  of  the  servient  estate  is  prohibited  from  doing 
something  otherwise  lawful  on  his  estate,  because  it  will  affect 
the  dominant  estate,  as  interrupting  the  light  and  air  from  the 
latter  by  building  on  the  former,  or  diverting  a  natural  water- 
course in  his  land,  whereby  the  water  is  prevented  from  flowing 
into  an  ancient  mill,  or  digging  in  his  own  soil,  and  thereby 
taking  away  the  support  of  a  house  standing  upon  the  dominant 
estate.^ 

§  1231.  How  Easements  may  be  acquired.  • —  There  are 
three  modes  of  acquiring  easements :  by  express  grant,  im- 
plied grant,  and  prescription.^  But  this  is  merely  saying  that 
an  easement,  being  an  interest  in  land,  can  be  created  only  by 
grant,  the  existence  of  which  may  be  established  by  production 
of  a  deed  expressly  declaring  it ;  or  may  be  inferred,  by  construc- 
tion, from  the  terms  and  effect  of  an  existing  deed  ;  or  evidence 
of  the  grant  may  be  derived  from  its  having  been  so  long 
enjoyed  as  to  be  regarded  as  proof  that  a  grant  was  originally 
made,  though  no  deed  is  produced  which  contains  it.  Even 
prescription  presupposes  a  grant  to  have  existed.*  In  case  of 
an  express  grant,  the  fact  of  the  creation  of  the  easement,  as 
well  as  its  nature  and  extent,  is  to  be  determined  by  the  lan- 
guage of  the  deed,  taken  in  connection  with  the  circumstances 
existing  at   the  time   of   making    it.^     An   easement   may  be 

1  Tud.  Lead.  Cas.  108  ;  Wolfe  v.  Frost,  4  Sandf.  Ch.  72,  89  ;  Gale  &  What. 
Ease.  52  ;  Grant  v.  Chase,  17  Mass.  443,  447  ;  Seymour  v.  Lewis,  13  N.  J.  Ch.  439, 
450. 

2  Gale  &  What.  Ease.  15  ;  Tud.  Lead.  Cas.  107. 

8  Tud.  Lead.  Cas.  108  ;  Drew  v.  Westfield,  124  Mas.s.  461. 
4  Strickler  v.  Todd,  10  S.  &  R.  63,  69;  Sargent  v.  Ballard,  9  Pick.  251,  255. 
*  Atlantic  Mills  v.  Mason,  120  Mass.  244  ;  and  an  expressly  granted  easement 
does  not  end  when  the  necessity  ceases.     Ibid. 


EASEMENTS.  277 

created  or  reserved  by  an  implied  grant  when  its  existence  is 
necessary  to  the  enjoyment  of  that  which  is  expressly  gi'anted 
or  reserved,  upon  the  principle,  that,  where  one  grants  any- 
thing to  another,  he  thereby  grants  him  the  means  of  enjoying 
it,  whetlier  exj)rcssed  or  not.  Tims,  if  A  sells  to  B  a  parcel  of 
land  surrounded  by  other  lands,  and  there  is  no  access  to  the 
granted  premises  but  over  his  own,  he  gives  the  purchaser  a 
right  of  way,  by  implication,  over  his  own  land  to  that  which 
he  has  granted.^  Cuieunque  aliquis  quid  concedit,  concedere 
vidctur  et  id^  sine  quo  res  ipsa  esse  non  potuit? 
■  §  1232.  Of  Prescriptive  Easements.  —  There  is  ordinarily 
much  less  difficulty  in  determining  the  existence  and  nature 
of  an  easement  created  by  an  express  or  implied  grant  than 
of  one  acquired  by  an  alleged  user  for  a  length  of  time  suffi- 
cient to  create  what  is  called  a  prescription.  Here  the  mode, 
intent,  and  duration  of  the  user,  as  well  as  the  condition  of 
the  two  estates  alleged  to  be  dominant  and  servient,  in  respect 
to  title  and  possession,  are  among  the  circumstances  to  be 
regarded  in  determining  the  question  of  the  character  and 
existence  of  the  easement.  And  the  want  of  some  one  of  these 
circumstances  may  render  a  concurrence  of  all  the  others  in- 
operative to  establish  the  existence  of  the  easement  claimed. 
Tims  there  may  be  two  distinct  estates,  and  the  owner  of  the 
one  may  have  claimed  and  exercised  the  right  of  passing  over 
the  other  for  the  period  of  tiine  ordinarily  requisite  to  give  a 
right  of  way,  but  would  fail  thereby  to  create  a  presumption  of 
a  grant,  if  the  servient  estate  during  that  period  or  any  con- 
siderable part  of  it,  had  belonged  to  a  minor,  or  was  in  pos- 
session of  a  lessee,  or  one  under  a  disability  like  a  married 
woman.  The  law  would  never  presume  a  grant  from  the 
apparent  acquiescence  of  one  who  could  not  have  made  it, 
or  had  no  right  to  oppose  the  user  from  which  it  was  sought 
to  be  inferred.^ 

§  1233.  Of  Easements  by  Express  Grant,  —  The  creation  of 
an  easement  by  express  grant  requires  a  deed.     It  cannot  be 

1  Pomfret  i-.  Ricroft,  1  Saund.  321,  3-23,  note  ;  Darcy  v.  Askwith,  Hob.  234  a. 

2  Broom,  Max.  362  ;  Collins  v.  Driscoll,  34  Conn.  43. 

3  Yard  v.  Ford,  2  Wms.  Saund.  175  c;,  note  ;  Watkins  v.  Peck,  13  X.  H.  360, 
381  ;  Melvin  v.  Whiting,  13  Pick.  184  ;  Woodworth  v.  Raymond,  51  Conu.  70  ; 
Goodman  v.  Saltash,  L.  li.  7  App.  Cas.  633,  658. 


278  INCORPOREAL   HEREDITAMENTS. 

done  by  parol.^  Thus  a  right  to  overflow  another's  land  can 
only  be  acquired  by  deed,  or  what  is  evidence  of  it,  prescrip- 
tion.^ The  grant  may  be  made  in  connection  with  that  of  the 
dominant  estate,  or  it  may  be  made  separately,  thereby  imposing 
the  easement  upon  the  estate  of  the  grantor,  and  rendering  it 
to  this  extent  servient  to  the  estate  of  the  grantee.^  So  this 
may  be  done  by  a  covenant  or  agreement  contained  in  a  deed 
of  the  servient  estate  as  to  the  mode  of  using  it,  in  favor  of 
another  estate,  although  the  latter  do  not  belong  to  the  grantor 
of  the  former,  and  although  the  grantee  do  not  sign  the  deed. 
An  easement  may  be  created  in  that  way  in  favor  of  one  estate, 
and  a  servitude  imposed  upon  the  other,  without  regard  to  any 
privity  or  connection  of  title  or  estate  in  the  two  parcels  of 
their  owners.  All  that  is  necessary  is  a  clear  manifestation 
of  the  intention  of  the  person  who  is  the  source  of  title  to 
subject  one  parcel  of  land  to  a  restriction  in  its  use  for  the 
benefit  of  another,  whether  that  other  belong  at  the  time  to 
himself  or  to  third  persons,  and  sufficient  language  to  make 
that  restriction  perpetual.^  So  it  may  be  reserved  to  the  estate 
of  the  grantor  out  of  that  which  he  has  gi'anted  to  another. 
Thus,  where  one,  upon  conveying  land  bounded  upon  a  stream 
of  water,  reserves  an  existing  mill  and  water  privilege,  there  is 
a  reservation  of  a  perpetual  right  to  flow  so  much  of  the  land 
granted  as  is  necessary  for  the  use  of  the  mill,  and  has  hitherto 
been  enjoyed.^ 

§  1234.  Easements  pass  ■with  Dominant  Estate.  —  Where  an 
easement,  like  a  right  of  way,  has  become  appurtenant  to  a 
dominant  estate,  a  conveyance  of  that  estate  carries  with  it  the 
easements  belonging  to  it,  whether  mentioned  in  the  deed  or 

1  Kenyon  y.  Nichols,  1  R.  I,  411,  417  ;  Tyler  v.  Bennett,  5  Ad.  &  E.  377  ; 
Browne,  Stat.  Frauds,  §  232  ;  Foster  v.  Browning,  4  R.  I.  47  ;  Hewlins  v.  Ship- 
pam,  5  B.  &  C.  221  ;  Bryan  v.  Whistler,  8  B.  &  C.  238  ;  Trauiraell  v.  Trammell, 
11  Rich.  471,  474. 

2  Snowden  v.  Wilaa,  19  Ind.  10,  13. 

3  Holms  V.  Seller,  3  Lev.  305  ;  Com.  Dig.  "  Chemin,"  D.  3  ;  Gerrard  v.  Cooke, 
5  B.  &  P.  109. 

*  Gibert  v.  Peteler,  38  Barb.  488,  514.  See  Barrow  v.  Richard,  8  Paige,  351 ; 
Brouwer  v.  Jones,  23  Barb.  153  ;  Trustees  u.  Lynch,  70  N.  Y,  440 ;  Story  v.  Ele- 
vated R.  R.,  90  N.  Y.  122  ;  Richardson  v.  Tobey,  121  Mass.  457  ;  N"orfleet  v. 
Cromwell,  70  N.  C.  634. 

»  Pctteev.  Hawes,  13  Pick.  323  ;  Phoenix  Ins.  Co.  v.  Cont.  Ins.  Co.,  87  N.  Y.  400. 


EASEMENTS.  279 

not,  although  not  necessary  to  the  enjoyment  of  the  estate  by 
the  grantee.^  If  a  right  of  way  be  appurtenant  to  a  parcel  of 
land,  it  would  pass  with  the  land  to  a  lessee,  though  it  were  by 
a  parol  demise  of  the  land.^  Although  a  parol  grant  of  a  right 
of  way  in  gross  would  be  of  no  legal  validity  except  as  a  revo- 
cable license.^  And  if  a  way  is  appurtenant  to  a  parcel  of 
land,  a  part  of  which  is  granted  to  another,  the  right  of  way 
will  exist  in  each  of  the  parts  into  which  the  original  estate  is 
divided.*  But  though  the  doctrine  is  thus  generally  laid  down, 
it  is  to  be  taken  with  the  limitation,  that  the  burden  upon  the 
servient  estate  is  not  thereby  increased  beyond  the  right  origi- 
nally intended  to  be  granted.  Thus,  if  A  were  to  grant  a 
small  parcel  of  land  forming  a  part  of  a  cultivated  field  to  B 
for  the  purposes  of  a  yard  to  his  house,  and  sliould  reserve  a 
way  across  the  same  from  the  highway  to  his  field,  he  would 
not  be  at  liberty  to  sell  his  field  into  house-lots,  and  thereby 
build  up  a  village,  and  give  to  each  purchaser  a  free  right  of 
way  through  B's  yard.^  Where  A  granted  the  right  of  an 
existing  way  to  another,  to  be  used  by  him  in  common  with 
the  grantor  and  his  heirs,  and  such  others  as  he  might  grant 
the  same  privilege  to,  it  was  held  that  he  could  not  grant  it 
to  a  stranger,  who  neither  owned  the  land  formally  of  A,  nor 
land  adjoining  the  passage-way ;  and,  if  used  to  get  access  to 
lots  lying  disconnected  with  such  passage-way,  it  would  be  in 
violation  of  the  right  granted  to  the  first  grantee.^ 

§  1235.  Of  the  Creation  of  Implied  or  Equitable  Easements.  — 
In  considering  when  and  wliat  easements  will  pass  under  an 
implied  grant,  it  is  generally  necessary  to  have  regard  to  the 
circumstances  of  each  particular  estate  granted ;  for  though  a 
man  cannot  have  an  easement  in  his  own  land,  and  ordinarily 
the  union  of  title  and  possession  of  two  estates  in  one  owner 

1  Kent  I'.  Waite,  10  Pick.  138 ;  2  Rolle,  Ahr.  60,  pi.  1  ;  Underwood  v.  Carney, 
1  Cash.  285;  George  v.  Cox,  114  Mass.  382  ;  Webster  v.  Stevens,  5  Duer,  553  ; 
Newman  v.  Nellis,  97  N.  Y.  285. 

2  Skull  V.  Glenister,  16  C.  B.  n.  8.  81,  90. 

3  Duinneen  r.  Rich,  22  Wis.  550,  554. 

*  Underwood  v.  Carney,  1  Gush,  285,  290  ;  Watson  v.  Bioren,  1  S.  &  R.  227; 
Wliitney  v.  Lee,  1  Allen,  198. 

5  Allan  V.  Gomme,  11  Ad.  &  E.  759;  So.  Metr.  Cemetery  v.  Eden,  16  C.  B.  42  ; 
Henning  v.  Burnet,  8  Exch.  187  ;  Washb.  Ease.  183. 

*  Lewis  V.  Carstairs,  6  Whart.  193. 


280  INCORPOREAL   HEREDITAMENTS. 

extinguishes  any  prior  existing  easement  in  the  one  for  the 
benefit  of  the  other,  there  are  cases  where  two  estates  liavc 
been  so  used  in  relation  to  each  other,  that,  if  the  owner  parts 
with  one  of  them,  he  has  been  held  impliedly  to  grant  or  re- 
serve an  easement  in  the  one  in  favor  of  the  other.  Thus  if 
A,  owning  a  dwelling-house  with  windows  opening  upon  his 
other  lands,  sells  the  parcel  on  which  the  house  stands,  it  has 
been  held  that  he  grants  by  implication  the  right  to  enjoy  light 
and  air  by  those  windows,  and  would  not  have  a  right  to  erect 
a  house  or  any  other  obstruction  upon  his  adjacent  land  which 
would  essentially  impair  the  use  of  these ;  because  he  could 
not,  in  such  a  case,  derogate  from  his  own  grant.  Nor  could 
the  grantee  of  such  adjoining  land  have  any  better  right  to  do 
this  than  the  grantor  himself.^  But  the  subject  is  referred 
to  here  chiefly  for  illustration,  and  will  be  again  resumed, 
post,  §  1366. 

§  1236.  Ways  of  Necessity.  —  If  A  sell  land  surrounding 
other  land  belonging  to  him,  to  which  he  can  have  access  only 
over  the  granted  premises,  he,  by  implication,  reserves  a  way 
over  the  same,  even  though  conveyed  with  covenants  of 
warranty.  The  way  in  such  case  becomes  a  way  of  necessity .^ 
And  where  a  creditor  set  off  a  front  parcel  of  the  land  of  his 
debtor  by  metes  and  bounds,  and  so  cut  off  his  access  to  his 
back  lands,  he  took  the  parcel  set  off  subject  to  the  debtor's 
right  to  pass  over  it  to  gain  access  to  his  rear  lands. ^  A  way 
of  necessity  must  be  one  of  more  than  mere  convenience ;  for, 
if  the  owner  of  the  land  can  use  another  way,  he  cannot  claim 
a  right  by  implication  to  pass  over  the  land  of  another  to  reach 

1  United  States  v.  Appleton,  1  Sumn.  492,  501  ;  Cherry  v.  Stein,  11  Md.  1,  24  ; 
Tenant  v.  Goldwin,  2  Ld.  Raym.  1089,  1093  ;  Gale  &  What.  Ease.  51,  63  ;  Swans- 
borough  V.  Coventry,  9  Bing.  305,  perTindal,  C.  J.  ;  Palmer  v.  Fletcher,  1  Lev.  122  ; 
Gerberu.  Grabel,  16  111.  217,  224  ;  Maynard  v.  Esher,  17Penn.  St.  222,  226;  Eosewell 
V.  Pryor,  6  Mod.  116  ;  Doyle  v.  Lord,  64  N.  Y.  432.  It  is  to  be  observed  that  the 
cases  of  Cherry  v.  Stein,  Gerber  v.  Grabel,  and  Maynard  v.  Esher  merely  contain 
dicta  on  this  point ;  and  the  settled  doctrine  even  in  these  States  limits  this  ease- 
ment to  cases  of  necessity.  In  Doyle  v.  Lord,  64  N.  Y.  432,  the  easement  was  held 
to  be  parcel  of  the  denuse. 

2  Brigham  v.  Smith,  4  Graj%  297  ;  Pinnington  v.  Galland,  9  Exch.  1  ;  Ponifret 
V.  Ricroft,  1  Wms.  Saund.  323,  n.  6  ;  Collins  v.  Prentice,  15  Conn.  39;  Pierce  v. 
Selleck,  18  Conn.  321,  328  ;  Seymour  v.  Lewis,  13  N.  J.  Eq.  489,  444. 

3  Pernam  v.  Wead,  2  Mass.  203  ;  Taylor  v.  Townsend,  8  Mass.  411  ;  Bass  V. 
Edwards,  126  Mass.  445. 


EASEMENTS.  281 

his  own,i  or  the  street ;2  but  it  would  be  enough  if  it  would 
require  an  unreasonable  amount  of  labor  and  expense  to  render 
the  possible  way  convenient,  that  is,  labor  and  expense  which 
would  be  excessive  and  disproportionate  to  the  value  of  the 
land  to  be  accommodated  ;  ^  and  a  way  of  necessity  can  only 
be  raised  out  of  land  granted  or  reserved  by  the  grantor,  but 
not  out  of  the  land  of  a  stranger.  For,  if  one  owns  land  to 
which  he  has  no  access  except  over  lands  of  a  stranger,  he  has 
not  thereby  any  right  to  go  across  these  for  the  purpose  of 
reaching  his  own.^  [The  doctrine  applies  where  lands  are 
partitioned  by  deed  or  by  decree,  in  favor  of  any  parcel  allotted 
which  has  no  access  to  the  highway  except  over  another  parcel 
allotted.^]  If  one.  has  a  rigiit  of  way  by  necessity  over  the 
land  of  another,  it  is  lost  when  the  necessity  ceases ;  so  that, 
if  he  afterwards  acquires  a  new  way  to  the  estate  previously 
reached  by  the  way  of  necessity,  the  first  is  thereby  extin- 
guished.^ [But  the  mere  opportunity  to  acquire  a  private  way 
over  tiie  land  of  another  will  not  extinguish  the  way  of 
necessity  7 

§1237.  Location  of  Way  of  Necessity.  —  When  a  way  of 
necessity  is  to  be  selected  for  the  first  time,  the  choice  of 
location  falls  on  the  owner  of  the  servient  estate,  who  must 
make  the  choice  with  view  to  the  reasonable  convenience  of 
the  owner  of  the  dominant  estate.  If  the  owner  of  the  servient 
estate  fail  or  refuse  to  make  the  location,  it  may  be  made  by 

1  Screven  v.  Gregorie,  8  Rich.  158  ;  Parker  v.  Bennett,  11  Allen,  383  ;  Meredith 
V.  Frank,  56  Oliio  St.  479  ;  s.  c.  47  N.  E.  Rep.  656  ;  Phej'sey  v.  Vicary,  16  M.  & 
W.  484.  Where  land  sold  was  bounded  on  three  sides  by  the  sea  and  on  the  fourth 
by  remaining  land  of  the  grantor,  no  way  of  necessity  existed.  Kingsbury  v. 
Gouldsborough  L.  I.  Co.,  86  Me.  279  ;  s.  C.  29  Atl.  Rep.  1078.  Principle  applied 
to  halls  and  stairways;  see  Tliompson  v.  Miner,  30  Iowa,  386  ;  Howell  v.  Estes,  71 
Tex.  690;  s.  c.  12  S.  W.  Rep.  62  ;  Galloway  v.  Bouesteel,  65  Wis.  79  ;  s.  c.  26 
N.  W.  Rep.  262 ;  Geible  v.  Smith,  146  Pa.  St.  276  ;  s.  o.  23  Atl.  Rep.  437  ;  Bene- 
dict V.  Barling,  79  Wis.  551  ;  s.  c.  48  N.  W.  Rep,  670. 

2  Botsford  V.  Wallace,  69  Conn.  263  ;  s.  c.  37  Atl.  Rep.  902. 
8  Pettiiigill  V,  Porter,  8  Allen,  1. 

*  Pomfret  v.  Ricroft,  1  Wins.  Saund.  323,  n.  6  ;  Kimball  v.  Cochecho  R.  R.,  27 
N.  H.  448  ;  Washb.  Ease.  1 62. 

6  Ritchey  v.  Welsch,  149  Ind.  214  ;  s.  c.  48  N.  E.  Rep.  1031. 

6  Holmes  v.  Goring,  2  Bing.  76,  83  ;  N".  Y.  Life  Ins.  Co.  v.  Milnor,  1  Barb. 
Ch.  353,  363  ;  Pierce  v.  Selleck,  18  Conn.  321  ;  Washb.  Ease.  165  ;  Abbott  v. 
Stewartstown,  47  N.  H.  228,  230. 

'  Ritchie  v.  Welsch,  supra. 


282  INCORPOREAL   HEREDITAMENTS. 

the  owner  of  the  dominant  estate,  who  must  have  due  regard 
for  the  reasonable  convenience  of  the  other.^  The  way  once 
selected  cannot  be  changed  by  cither  party  without  the  con- 
sent of  the  other.^j  The  same  doctrine  applies  to  locating  an 
aqueduct.^ 

§  1238.  Way  implied  from  Street  Boundary.  —  [A  way  of 
necessity  arises  from  the  fact  of  a  conveyance  being  made 
under  the  circumstances  then  existing.  But  a  way  may  be 
implied  irrespective  of  the  necessity  of  the  case  from  the  terms 
of  tlie  grant;  thus]  if  one  grant  a  lot  of  land  which  is  laid 
down  upon  a  plan,  and  bound  it  by  an  alley  which  is  also  laid 
down  upon  the  plan,  it  will  carry  with  it  a  right  of  way  over 
this  alley,  as  appurtenant  to  the  lot,  if  it  belong  to  the  grantor. 
Nor  would  it  be  lost  by  mere  non-user.  So,  if  it  be  bounded 
by  a  street,  it  per  se  dedicates  the  street  to  the  use  of  the 
purchaser,  although  it  be  not  a  public  one.*  In  New  York, 
bounding  by  a  street  does  not  give  the  grantee  a  right  to  insist 
that  it  shall  be  kept  open  by  the  grantor,  if  it  never  has  been 
laid  out  and  accepted  by  the  proper  authorities.^  But  in 
Maine  it  is  held  that  the  grantee  has  a  right  to  have  it  kept 
open  for  his  reasonable  use  as  a  way.^ 

§  1239.  other  Easements  of  Necessity.  —  The  easements 
which  pass  by  implication  in  the  grant  of  premises,  as  ease- 
ments of  necessity,  are  such  as  are  requisite  to  the  proper 
enjoyment  of  the  granted  estate.     Thus  if  A  sells  land  to  B, 

1  Eussell  V.  Jackson,  2  Pick.  573  ;  Holmes  v.  Seelj',  19  Wend.  507  ;  Jenne  v. 
Piper,  69  Vt.  497  ;  s.  c.  38  Atl.  Rep.  147  ;  Ritchie  v.  Welsch,  supra. 

2  Nichols  V.  Luce,  24  Pick.  102  ;  s.  c.  35  Am.  Dec.  302;  Jennison  v.  Walker, 
11  Gray,  423  ;  O'Brien  v.  Schayer,  124  Mass.  411  ;  Chandlery.  Jam.  Pd.  Aq.  Co., 
125  Mass.  544  ;  Gerrish  v.  .Shattuck,  128  Mass.  571  ;  Outhauk  v.  L.  Shore  R.  R., 
71  K  Y.  194. 

3  See  cases  in  previous  note. 

*  Wiggins  V.  McCleary,  49  N.  Y.  346,  348  ;  Cox  v.  James,  45  N.  Y.  557,  562  ; 
Howe  V.  Alger,  4  Allen,  206  ;  Washb.  Ease.  (3d  cd.)  221,  241  ;  Tobey  v.  Taunton, 
119  Mass.  404;  Holt  u.  Somerville,  121  Mass.  574;  Franklin  Ins.  Co.  v.  Cousens, 
127  Mass.  258  ;  Dill  v.  Board  of  Education,  47  N.  J.  Eq.  421  ;  a.  c.  20  Atl.  Rep. 
739.  So  where  grantee  built  on  the  faith  of  a  parol  dedication  and  actual  con- 
struction. Newman  v.  Nellis,  97  N.  Y.  285.  But  otherwise  if  not  in  the  imme- 
diate vicinity  of  the  land  granted,  or  not  clearly  indicated  as  a  way.  Bost.  Water 
Pow.  Co.  V.  Boston,  127  Mass.  374  ;  Williams  v.  Bost.  Water  Pow.  Co.,  134  Mass. 
406  ;  Littler  v.  Lincoln,  106  111.  353,  367;  post,  §  2341. 

6  Fonda  V.  Bor.st,  2  Abb.  N.  Y.  Dec.  155. 

8  Warren  i'.  Blike,  54  Me.  276,  281. 


EASEMENTS.  283 

reserving  the  trees  growing  thereon,  he  thereby  reserves  a  right 
to  enter  upon  the  granted  premises,  and  cut  and  carry  them 
away,  and  may  give  this  right  to  another.^  So  where  one  sells 
lands,  reserving  the  mines  and  a  right  to  sink  and  open  new 
mines  of  coal  therein,  he  thereby  reserves  by  implication  a 
right  to  do  whatever  is  necessary  to  carry  this  into  effect,  such 
as  fixing  and  maintaining  machinery  for  the  purpose,  and  lay- 
ing a  railroad  across  the  land  upon  which  to  draw  the  coal.^ 
So  where  the  owner  of  two  estates,  one  of  which  he  leased,  and 
from  which  over  the  other  estate  he  suffered  a  drain  to  be 
used  by  his  tenant  for  ten  years,  and  then  sold  both  estates 
at  the  same  time  to  different  purchasers,  saying  nothing  of 
the  drain,  it  was  held,  the  right  to  use  it  did  not  pass  to  the 
owner  of  the  parcel,  if  he  could  drain  his  land  in  any  other 
way.^ 

§  1240.  Effect  of  dividing  the  Dominant  Estate.  —  A  predial 
servitude  or  easement  is  a  charge  upon  the  servient  tenement, 
and  follows  it  into  the  hands  of  any  one  to  whom  such  estate 
or  any  part  of  it  is  conveyed.  And  as  it  is  annexed  to  the 
estate  for  the  benefit  of  which  the  servitude  is  created,  the 
right  is  not  destroyed  by  a  division  of  such  tenement.  The 
owner  or  assignee  of  any  part  of  it  may  claim  the  right,  so  far 
as  it  is  applicable  to  his  part  of  the  property,  provided  it  can 
be  enjoyed  by  the  several  estates  without  increasing  the  burden 
or  charge  upon  the  servient  estates.  In  the  case  in  which  this 
was  applied,  the  grantor  sold  a  parcel  of  land  opening  upon 
another  lot,  which  the  grantor  covenanted  should  remain  open 
for  purposes  of  light,  etc.  The  grantee  sold  a  part  of  his  estate 
to  the  plaintiff;  and  then,  the  original  grantor  having  sold  the 
open  lot  to  the  defendant,  the  latter  began  to  build  upon  it. 
Upon  a  bill  in  equity  by  the  plaintiff  to  restrain  him,  an  in- 
junction was  granted.* 

§  1241.  Of  Covenants  •which  Equity  fastens  on  Land  as  Ease- 
ments. —  From  this  recognized  power  on  the  part  of  the  owner 

1  Liford's  Case,  11  Rep.  52  ;  Darcy  v.  Askwith,  Hob.  234. 

2  Dand  v.  Kingscote,  6  M.  &  W.  174,  195. 
8  John.son  v.  Jordan,  2  Met.  234. 

*  Hills  V.  Miller,  3  Paige,  254.  See  also  Rankin  v.  Huskisson,  4  Sim.  13  ;  Wat- 
son V.  Biorcn,  1  S.  &  R.  227  ;  Underwood  v.  Carney,  1  Cush.  285  ;  Case  of  Private 
Road,  1  Ashm.  417;  Whitney  v.  Lee,  1  Allen,  198. 


284  INCORPOREAL    HEREDITAMENTS. 

of  an  estate  to  impress  upon  parts  of  his  estate  the  rights  and 
liabihtics  in  respect  to  each  other  which  courts  of  equity  treat 
as  of  the  nature  of  easements,  a  chiss  of  what  may  be  called 
equitable  easements  has  grown  out  of  covenants  and  agreements 
made  by  such  owners  in  respect  to  the  modes  in  which  the  parts 
of  sucli  estates  should  be  used  in  reference  to  each  other,  which 
easements  become  mutually  appurtenant  to  these  parts  rcsj)ec- 
tively.^  Among  the  cases  in  whicli  this  class  of  easements  has 
been  considered  are  those  cited  below,  where,  in  respect  to  the 
mode  of  building  upon  or  occupying  parts  of  a  once  common 
estate,  certain  stipulations  were  made  by  the  owners,  or  in  the 
deeds  of  the  same,  as  to  the  use  of  ways,  light,  and  air,  etc.,  to 
be  enjoyed  in  connection  with  these  estates  ;  and  in  one  of  which 
the  court  say  :  "  A  covenant,  though  in  gross,  may  nevertheless 
be  binding  in  equity,  even  to  the  extent  of  fastening  a  servitude 
or  easement  on  real  property,  or  of  securing  to  the  owner  of 
one  parcel  of  land  a  privilege ;  or,  as  it  is  sometimes  called,  a 
'  right  to  an  amenity  '  in  the  use  of  an  adjoining  parcel,  by  which  . 
his  own  estate  may  be  enhanced  in  value,  or  rendered  more 
agreeable  as  a  place  of  residence."  ^  Such  covenants  run  with  ^ 
the  land,  and  bind  assignees;  and  a  party  injured  may  have  1 
a  remedy  in  equity.^ 

§  1242.  How  Easements  created  in  Favor  of  Owners  of  Distinct 
Parcels.  — This  subject  suggests  an  important  inquiiw,  how  and 
to  what  extent  the  owner  of  an  estate  can,  when  conveying  it 
in  separate  and  distinct  parcels  to  different  persons,  create  ser- 
vitudes or  easements  upon  one  in  favor  of  another  of  these 
parcels.  The  matter  is  thus  presented  by  the  court  in  Whitney 
V.  Union  R.  Co. :  "  Cases  have  arisen  where  the  owner  of  a 
large  tract  of  land,  for  the  purpose  of  providing  an  area  in 
front  of  it,  to  be  kept  forever  open,  for  securing  its  permanent 

1  Trustees  v.  Lynch,  70  N.  Y.  440. 

2  Parker  v.  Nightingale,  6  Allen,  341  ;  Hubbell  v.  "Warren,  8  Allen,  173 ; 
Wolfe  V.  Frost,  4  Sandf.  Ch.  72;  Tallmadge  v.  East  Riv.  Bk.,  26  N.  Y.  105; 
Greene  v.  Creighton,  7  R.  I.  1  ;  Whatman  v.  Gibson,  9  Sim.  196  ;  Washb.  Ease. 
(3d  ed.)  97-106. 

8  Winfield  V.  Henning,  21   N.  J.  E(i.  188  ;  Clark  v.  Martin,  49  Penn.  St.  289 
St.  Andrew's  Ch.  App.,  67  Penn.  St.  512,  518  ;  Harrison  v.  Good,  L.  R.  11  Eq.  338 
Brewer  v.  Marshall,    19  N.  J.   Eq.   537,  543;    Tnistees  v.  Lynch,  70  N.  Y.  440 
Curtiss  V.    Ayrault,   47   N.  Y.   73  ;  Talk   v.  Moxhay,  2  Phill.   Ch.   774  ;  Catt  v. 
Tourle,  L.  R.  4  Ch.  App.  654  ;  Caster  v.  Williams,  18  W.  R.  593. 


EASEMENTS.  285 

use  and  enjoyment  for  dwellings,  and  excluding-  all  offensive 
and  noxious  trades  from  the  premises,  has  inserted  covenants 
and  conditions  in  his  grants  restricting  the  use  of  the  land 
conveyed  so  as  to  effect  these  objects.  It  has  been  held  in 
such  cases,  that  each  grantee  of  a  part  of  the  land  subject  to 
such  restrictions  is  bound  to  observe  the  stipulations  in  favor 
of  other  grantees  of  a  part  of  the  same  land,  and  is  entitled  to 
claim  a  like  observance  in  his  favor  as  against  them."  And 
the  court  further  say  :  "  In  such  cases,  although  the  covenant 
or  agreement  in  the  deed,  regarded  as  a  contract  merely,  is 
binding  on  the  original  parties  only,  it  will  be  construed  as 
creating  a  right  or  interest  in  the  nature  of  an  incorporeal 
hereditament  or  easement  appurtenant  to  the  remaining  land 
belonging  to  the  grantor  at  the  time  of  the  grant,  and  arising 
out  of  and  attached  to  the  land,  part  of  the  original  parcel  con- 
veyed to  the  grantee.  When,  therefore,  it  appears,  by  a  fair 
interpretation  of  the  words  of  the  grant,  that  it  was  the  intent 
of  the  parties  to  create  or  reserve  a  right  in  the  nature  of  a 
servitude  or  easement  in  the  property  granted  for  the  benefit 
of  the  other  land  owned  by  the  grantor,  and  originally  forming 
with  the  land  conveyed  one  parcel,  such  right  shall  be  deemed 
appurtenant  to  the  land  of  the  grantor,  and  binding  on  that 
conveyed  to  the  grantee,  and  the  right  and  burden  thus  created 
will  respectively  pass  to  and  be  binding  on  all  subsequent 
grantees  of  the  respective  parcels  of  lands."  ^  From  the  doc- 
trine of  a  more  recent  case,  however,^  these  propositions  are  to 
be  confined  to  cases  where  the  covenant  or  agreement  on  the 
part  of  the  original  grantee  with  the  grantor  expressly  related 
to  and  was  for  the  benefit  of  the  covenantee  as  owner  of 
another  parcel  of  estate  at  the  time  of  the  grant,  and  had 
relation  to  such  estate,  and  it  was  so  made  that  the  owner  of 
the  granted  estate,  if  not  liimself  the  covenantor,  had  notice 
thereof  when  he  became  the  purchaser.  And  this  restriction, 
by  way  of  condition,  in  the  manner  of  using  an  estate  granted, 
cannot  be  availed  of  by  the  owners  of  other  estates,  unless  the 
condition  be  made  in  reference  to  the  estate  being  divided  into 

1  Whitney  v.  Union  R.  R.,  11  Gray,  359  ;  Clark  v.  Martin,  49  Penn.  St.  289, 
298;  and  see  Schwoerer  v.  Boylst.  Mkt.,  99  Mass.  285;  Parker  v.  Niglitin^rale, 
6  Allen,  341  ;  Tinker  n.  Forbes,  136  111.  221;  26  N.  E.  Rep.  503;  and  post,  §1280. 

2  Badger  v.  Boardman,  16  Gray,  559.    •, 


286  INCORPOREAL    HEREDITAMENTS. 

parcels,  to  be  owned  by  different  persons,  and  to  be  beneficial 
to  such  individual  owners,  or  it  was  made  to  benefit  some  other 
adjacent  tract,  or  one  in  the  vicinity.  If  this  is  not  so,  the  con- 
dition would  only  enure  to  the  grantor  and  his  heirs,  and  they 
only  could  take  advantage  of  it.^  In  one  case,  A  owned  two 
estates  adjoining  each  other,  upon  one  of  which  was  a  dwelling- 
house  having  a  projecting  part  in  the  rear,  one  story  in  lieight. 
He  sold  the  latter  subject  to  the  restriction  "  that  no  outbuild- 
ing or  shed,  etc.,  shall  ever  be  erected,  etc.,  of  a  greater  height 
than  those  standing  thereon."  Subsequent  to  this,  A  sold  to 
the  plaintiff  his  other  and  adjoining  estate.  The  purchaser  of 
the  first  estate  proposed  to  raise  the  projecting  part  of  the 
house  another  story,  and  thereupon  the  plaintiff  brought  a  bill 
in  equity  against  the  latter  to  restrain  him  from  thus  raising 
the  building  on  his  estate.  The  original  vendor  had  in  the 
mean  time,  after  his  sale  to  the  plaintiff,  released  the  restric- 
tion to  the  first  purchaser.  The  court  held  that  the  bill  "could 
not  be  maintained,  inasmuch  as  there  was  nothing  in  the  deed 
which  showed  that  the  restriction  as  to  building  was  intended 
to  enure  to  the  benefit  of  the  estate  now  owned  by  the  plaintiff, 
nor  did  the  words  of  the  restriction  indicate  the  object  of  the 
grantor  in  inserting  it  in  the  deed.  And  the  grantee,  therefore, 
had  no  notice  that  the  restriction  was  intended  for  the  benefit 
of  the  plaintiff's  estate.^  Among  the  cases  illustrative  of  the 
foregoing  doctrine  is  the  one  already  mentioned  ;  namely,  a 
vendee  of  a  parcel  of  village  land  took  from  his  vendor  a  bond, 
which  was  recorded  with  his  deed,  whereby  his  vendor  bound 
himself,  etc.,  that  a  certain  other  parcel  belonging  to  him,  ad- 
joining that  conveyed,  should  forever  be  kept  open,  and  not 
built  upon.  The  vendee  then  sold  to  one  II.  a  part  of  the  first 
parcel,  at  the  same  time  informing  him  of  the  agreement  as  to 
the  other  parcel.  After  this,  the  representative  of  the  first 
party  gave  license  to  a  third  party  to  build  upon  this  other  par- 
cel ;  and  H.  applied  for  an  injunction,  which  was  decreed,  on 
the  ground  that  the  right  thus  granted,  of  having  the  other 
parcel  kept  open,  was  a  servitude  upon  the  latter  in  favor  of 

1  Jewell  I'.  Lee,  14  Allen,  145,  149,  150  ;  Dana  v.  Wentworth,  111   Mass.  ^91, 
293  ;  Jeffries  v.  Jeffries,  117  Mass.  184. 

2  Badger  v.  Boardman,  supra;  Skiuner  v.  Shepherd,  130  Mass.  180. 


EASEMENTS.  287 

the  foi'mer,  and  that  the  owner  of  the  servient  estate  might  be 
enjoined  from  making  any  erection  on  it  which  might  injure 
the  light  or  prospect  of  the  dominant  tenant ;  that  rights  of  this 
description  are  attached  to  the  estate,  and  not  to  the  person  of 
tlie  owner  of  the  dominant  tenement ;  and  they  follow  that 
estate  into  the  hands  of  tlie  assignee  thereof,  and  follow  the 
servient  estate  as  a  charge  into  the  hands  of  any  person  to 
whom  the  same  or  any  part  thereof  is  subsequently  conveyed.^ 
A  case  perhaps  more  directly  in  ])oint  was  one  where  the 
owner  of  a  block  of  ground  in  the  city  of  New  York  divided 
the  same  into  thirty-nine  building-lots,  and  recorded  a  copy  of 
the  map  thereof  in  the  registry  of  deeds.  He  then  sold  five 
of  these  lots  to  four  different  persons  in  severalty.  In  each 
of  tlie  deeds  a  condition  was  inserted,  declaring  the  conveyance 
void  if  there  should  be  erected,  etc.,  on  any  part  of  the  prem- 
ises conveyed,  any  livery-stable,  slaughter-house,  etc.  (enumer- 
ating several  kinds  of  trades  "  offensive  to  the  nei'diborinsc 
inhabitants  ").  He  afterwards  sold  more  than  twenty  other  of 
the  lots,  containing  a  mutual  covenant  between  grantor  and 
grantee  of  a  similar  effect  as  to  restricting  these  trades,  but 
not  in  the  form  of  a  condition.  One  B.  j)urchased  No.  11,  and 
R.,  subsequently  to  that,  purchased  No.  12,  which  were  a  part 
of  the  last  twenty  lots.  11,  erected  works  on  No.  12  alleged  to 
be  offensive,  and  B.  brought  a  bill  to  restrain  his  using  it  for 
that  purpose.  The  court  held  that  these  covenants  run  with 
the  land,  are  binding  upon  all  who  succeed  to  it,  but  do  not 
attach  to  any  other  parcel  so  as  to  run  in  favor  of  the  purchaser 
thereof  as  assignee  of  the  covenantee.  But  it  was  held  that  a 
court  of  chancery  might  protect  a  previous  purchaser  by  in- 
junction against  the  acts  of  a  subsequent  one,  who  had  entered 
into  such  a  covenant  for  the  nnitual  benefit  and  protection  of 
all  the  purchasers  in  the  block.^ 

1  Hills  V.  Miller,  3  Paige,  254,  256  ;  Clark  v.  Martin,  49  Penn.  St.  289,  298. 

2  Barrow  v.  Richard,  8  Paige,  35].  See  also  Trustees  of  Watertowii  v.  Cowen, 
4  Paige,  510,  515  ;  3  Sugd.  Vend.  401  ;  Bedford  v.  Brit.  Mus.,  2  Mylne  &  K.  552; 
Gibert  v.  Peteler,  38  Barb.  488,  513  ;  Easter  v.  L.  :\I.  R.  1!.,  14  Ohio  St.  48,  54. 
That,  where  thei'e  is  a  general  scheme  of  iinproveme'it,  or  common  plan,  restrictions 
and  conditions  therein  and  in  aid  thereof  will  be  enforced  in  equity  as  quasi  ease- 
merits  enuring  to  all  sncceeding  grantees,  see  Tobey  v.  Moore,  130  Mass.  448,  dis- 
tinguishing Dana  v.  Wentworth,  111  Mass.  291.     So  Jeffries  v.  Jeffries,  117  Mass. 


288  INCORPOREAL   HEREDITAMENTS. 

§  1243.  Further  Examples.  —  In  another  case,  the  owner  of 
a  parcel  of  land  erected  several  houses  thereon  adjoining  each 
other  in  such  a  manner  as  to  require  the  mutual  support  of 
each  other,  and  then  sold  one  of  these  with  the  land  on  which 
it  stood.  It  was  held  that  the  right  of  having  it  supported  by 
the  adjacent  houses  passed  with  it  as  an  easement,  while  a 
corresponding  right  of  having  the  remaining  house  or  houses 
adjoining  it  supported  upon  that  was  reserved  to  such  other 
house  or  houses.  Nor  does  the  right  depend,  in  such  a  case, 
upon  any  priority  of  titles  in  the  respective  owners,  where  the 
original  owner  has  parted  with  his  title  to  the  same.^  In  one 
case,  it  was  assumed  that  the  owner  of  a  tenement  may  so  grant 
an  easement  in  it  as  to  create  an  easement  over  the  tenement 
of  the  grantee  in  favor  of  his  own  tenement,  by  a  provision  to 
that  effect  in  the  grantor's  deed.  Thus  where  A  had  a  close 
(No.  2)  lying  between  two  closes  (Nos.  1  and  3)  belonging  to  B, 
and  A  granted  to  B  a  right  to  construct  and  maintain  a  drain 
from  No.  1  across  No.  2  to  No.  3,  and  through  that  to  its  out- 
let, and  A,  in  his  grant  to  B,  reserved  the  right  to  enter  his 
drain  for  the  benefit  of  No.  2,  with  the  privilege  of  having  the 
waste  water  therefrom  pass  through  No.  3  forever,  —  this,  it 
was  assumed,  secured  the  grantor  a  right  in  the  grantee's  land 
by  the  way  of  an  implied  grant  or  covenant,  though  not  strictly 
a  reservation .2 

§  1244.  Easements  implied  in  Grants  of  Houses,  etc.  —  It  is 
stated  as  a  general  proposition,  that  if  there  be  a  severance  of 
a  heritage  into  two  or  more  parts,  in  respect  to  which  there 
had    been   continuous    and    apparent    easements  used  by  the 

184  ;  Parker  v.  Nightingale,  6  Allen,  341  ;  Sohwoerer  v.  Boylst.  Mkt,  99  Mass. 
285;  Tallmadge  u.  East  Riv.  Bk.,  26  N.  Y.  105  ;  Western  v.  McDermott,  L.  R. 
2  Ch.  App.  72  ;  Sanhora  v.  Rice,  129  Mass.  387  ;  Phreiiix  I.  Co.  v.  Contl.  I.  Co.,  87 
N.  Y.  400.  And  see  Story  v.  Elev.  R.  R.,  90  IST.  Y.  122.  But  only  an  abutter  or 
neighbor  can  enforce  these.  Renals  v.  Cowlishaw,  9  Ch.  Div.  125  ;  11  id.  866 ;  and 
see  Linzee  v.  Mixer,  101  Mass.  512,  528.  And  where  there  are  simply  similar  re- 
strictions upon  adjacent  lots,  no  mutual  equity  arises.  Sharp  v.  Ropes,  110  Mass. 
381.  So  Beals  v.  Case,  138  Mass.  138,  where  the  restriction  was  waived  in  some 
deeds  and  omitted  in  others. 

1  Richards  v.  Rose,  9  Exch.  218  ;  Webster  v.  Stevens,  5  Duer,  553  ;  Eno  v.  Del 
Vecchio,  6  Duer,  17  ;  Rogers  v.  Sinsheimer,  50  N.  Y.  646  ;  Thompson  v.  Miner, 
30  Iowa,  386  ;  Ingals  v.  Plamondnn,  75  111.  118. 

2  Dyer  v.  Sanford,  9  Met.  395,  405,  per  Shaw,  C.  J. 


EASEMENTS.  289 

owner,  such  an  casement  would  pass  by  implication  with  the 
dominant  estate,  although  technically  it  could  not  have  been 
enjoyed  as  an  easement  by  the  owner  of  the  entire  estate.^ 
Thus  where  one  owned  two  adjoining  houses  which  had  drains 
communicating  with  each  other,  in  use,  and  he  sold  one  of  these 
without  mentioning  the  draiu.  it  was  held  that  the  grantee  took 
his  estate  with  the  existing  right  of  using  the  drain  connected 
with  the  other,  and  subject  to  the  easement  of  the  drain  of  the 
other  estate,  by  an  implied  grant  and  reservation.^  So  wliere 
two  houses  had  had  the  use  of  an  alley  between  them,  and  in  this 
state  came  to  the  hands  of  one  proprietor  in  fee,  whose  interest 
was  afterwards  conveyed  by  a  sheriff's  sale  to  two  separate 
persons  as  distinct  parcels,  it  was  held  that  the  right  of  way 
through  this  alley  revived  in  favor  of  each  of  the  tenements.^ 
And  where  the  owner  of  two  parcels  has  used  one  of  them  in 
such  a  manner  as  requires  a  partial  use  of  the  other,  as  in  case 
of  water-rights,  and  such  a  use  is  necessary  to  the  enjoyment 
of  the  parcel  for  the  benefit  of  which  the  other  has  been  thus 
used,  and  the  parcels  come  into  the  hands  of  different  owners, 
they  would,  in  some  cases,  take  them  as  if  there  was  an  exist- 
ing easement  which  the  one  had  in  the  other  by  a  grant  and 
reservation  of  the  estate  with  the  appurtenances,  altliough  a 
man  cannot  have  an  easement  in  his  own  land.*  Thus,  if  a 
man  lay  pipes  for  a  conduit  from  one  part  of  his  land  to  his 
house,  situated  upon  another  part,  and  sell  the  house  with  its 
appurtenances,  reserving  the  land,  or  the  land,  reserving  the 
house,  the  right  to  maintain  the  conduit  will  pass  or  be  reserved 
as  an  easement  appurtenant  to  the  house,  if  it  is  necessary  to 
the  enjoyment  of  the  same.^  So  where  the  owner  of  a  mill,  the 
race-way  from  which  was  an  artificial  trench  running  along  the 
bank  of  the  natural  stream,  sold  the  mill  and  land  on  which  it 
stood  by  metes  and  bounds,  not  including  the  land  through 
which  this  race-way  had  been  excavated,  it  was  held  that  the 

1  Kenyon  v.  Nichols,  1  R.  I.  411,  417. 

2  Nicholas  v.  Chaiiiherlain,  Cro.  Jac.  121  ;  Pyer  v.  Carter,  1  Hurlst.  &  N.  916. 
But  see  Johnson  v.  Jordan,  2  Met.  234,  240 ;  Buss  v.  Dyer,  125  Mass.  287  ;  and 
posf,  §  1248. 

8  Kictrer  v.  Imhoff,  26  Penn.  St.  433. 

*  Brakely  v.  Sharp,  9  N.  J.  Eq.  9,  14 ;  McTavish  v.  Carroll,  7  Md.  352. 
6  Nicholas  v.  Chamberlain,  Cro.  Jac.  121;  Guy  v.  Brown,  F.  Moore,  644. 
VOL.  II,  — 19 


290  INCORPOREAL    HEREDITAMENTS. 

right  to  make  use  of  this  passed,  by  implication,  by  the  deed  of 
the  land  on  which  the  mill  was  standing.^ 

§  1245.  Necessity  the  Test  in  such  Cases.  —  But  whether  the 
right  to  such  an  easement  passes  in  such  cases  or  not  depends 
upon  whether  it  is  necessary  to  the  enjoyment  of  the  estate 
granted  or  reserved.  Thus  in  the  case  of  Brakely  v.  Sharp, 
above  cited,^  the  owner  of  the  land  had  laid  an  aqueduct  to  two 
houses  on  his  estate,  an  upper  and  a  lower  one,  first  passing  to 
the  u[)per  house  and  then  to  the  lower  one,  through  his  own 
estate.  The  upper  one  was  set  off  to  the  widow  and  one  of 
his  heirs  ;  the  other  was  then  sold  by  commissioners  upon  the 
estate  to  a  third  person.  And  it  was  held  that  the  right  to  the 
aqueduct  did  not  pass  with  the  lower  house,  because  it  was  not 
necessary  for  its  enjoyment ;  though,  had  it  been,  this  right 
would  have  passed  with  it.^ 

§  1246.  Further  Illustration.  — In  another  case,  the  effect  of 
dividing  a  heritage  into  two  or  more  parts,  upon  the  character 
and  use  of  rights  which  would  have  been  easements,  if  the  sev- 
eral parts  had  been  occupied  by  different  owners,  came  to  be 
considered.  The  estate  was  a  swamp  used  for  the  cultivation 
of  rice,  and  had  been  provided  with  artificial  channels  for  con- 
trolling the  water  and  conducting  it  off  the  premises,  which 
premises  were  subsequently  divided,  and  became  the  separate 
estates  of  distinct  owners.  It  was  held  that  in  the  severance 
of  such  a  heritage  there  was  an  implied  grant  of  all  such  con- 
tinuous and  apparent  easements  which  had  been  used  by  the 
owner  of  the  entire  estate,  as  well  as  of  all  easements,  without 
which  the  enjoyment  of  the  several  portions  could  not  be  fully 
had.* 

§  1247.  Easements  implied  from  Adaptation  of  Premises.  — 
The  adaptation  of  the  several  parts  of  one  or  more  estates  by 
the  same  owner  in  reference  to  the  advantageous  occupation 
of  the  same  is  called  in  the  French  law  deMination  du  pere  de 
famille,  and  would  have  the  same  effect  if  the  owner  were  to 

1  New  Ipswich  Factory  v.  Batclielder,  3  N.  H.  190.  But  see  Rogers  v.  Peck, 
Berton  (N.  B.),  488. 

2  Brakely  v.  Sharp,  9  N.  J.  Eq.  9,  14  ;  s.   C.  10  N.  J.  Eq.  206. 

3  Palmer  v.  Flessier,  1  Keble,  553  ;  Johnson  v.  Jordan,  2  Met.  234 ;  Archer  t-. 
Bennett,  1  Lev.  131  ;  Sury  v.  Pigot,  Poph.  166. 

*  Elliott  V.  Rhett,  5  Rich.  (S.  C.)  405,  415. 


EASEMENTS.  291 

convey  one  of  these  parts,  and  retain  the  other  in  creating  an 
casement  or  servitude  in  favor  of  or  upon  the  part  so  conveyed, 
as  if  it  were  expressly  declared  in  writing  to  exist. ^  The  only 
limitation  perhaps  which  sliould  be  added,  in  order  to  apply 
this  doctrine  to  the  English  and  American  law,  is,  that  what  is 
thus  claimed  as  an  easement  must  be  reasonably  necessary  to  the 
enjoyment  of  that  to  which  it  is  sought  to  make  it  appendant.^ 
Among  the  numerous  cases  which  might  be  cited  to  confirm 
the  above  doctrine  is  one  where  the  owner  of  a  tract  of  land 
through  which  a  stream  of  water  flowed  diverted  it  by  a  new 
channel,  leaving  that  part  through  which  it  had  flowed  dry,  and 
fit  for  building  purposes.  In  this  state  he  sold  this  part ;  and 
subsequently  the  purchaser  of  the  other  part  stopped  the  arti- 
ficial trench  upon  his  own  land,  and  restored  the  stream  to 
its  ancient  bed.  It  was  held,  that  by  so  doing  lie  violated 
the  rights  of  the  first  purchaser.  The  rule  is  thus  stated  : 
"  Where  the  owner  of  two  tenements  sells  one  of  them,  or 
the  owner  of  an  entire  estate  sells  a  portion,  the  purchaser 
takes  the  tenement  or  portion  sold,  with  all  the  benefits  and 
burdens  which  appear  at  the  time  of  the  sale  to  belong  to  it,  as 
between  it  and  the  property  which  the  vendor  retains."  ^     In 

1  Pardessus,  Traite  des  Servitudes,  430,  431  ;  Code  Nap.  art.  642  ;  La.  Civ.  Code, 
art.  763  ;  Seymour  v.  Lewis,  13  N.  J.  Eq.  439,  443.  The  analogy  of  this  doctrine 
of  the  civil  law  to  cases  of  conveyance  was  first  suggested  in  Gale  &  What.  Ease. 
50-52.  It  has  been  recently  denied,  Goodal  v.  Godfrey,  53  Vt.  219  ;  and  held 
applicable  only  where  a  heritage,  strictly  so  called,  is  divided.  Where  this  is  the 
case,  priority  of  grant  is  not  important,  nor  strict  necessity.  Ibid.  Thus,  in  case 
of  a  devise,  Fetters  v.  Humphreys,  18  N.  J.  Eq.  260;  or  a  division  by  a  father  in 
his  lifetime,  Phillips  v.  Phillips,  48  Penn.  St.  178;  or  partition  among  tenants  in 
common,  Brakely  u.  Sliarp,  9  N.  J.  Eq.  9;  s.  c.  10  N.  J.  Eq.  206;  Pearson  v. 
Spencer,  1  Best  &  S.  571  ;  Thompson  v.  Miner,  30  Iowa,  386  ;  or  assignment  of 
dower,  Morrison  v.  King,  62  111.  30. 

2  French  v.  Carhart,  1  N.  Y.  96,  104  ;  Washb.  Ease.  53,  54,  529  ;  Johnson  v. 
Jordan,  2  Met.  234,  242  ;  Simmons  v.  Cloonan,  81  N.  Y.  557. 

3  Lampman  v.  Milks,  21  N.  Y.  505,  507 ;  Eoot  v.  Wadhams,  35  Hun,  57.  See 
Dunklee  v.  Wilton  Pu  Pi.,  24  N.  H.  489.  The  former  case  has  been  affirmed  in  New 
York,  Roberts  v.  Roberts,  55  N.  Y.  275  ;  Parsons  v.  Johnson,  68  N.  Y.  62,  66  ; 
Simmons  v.  Cloonan,  81  N.  Y.  557  ;  and  elsewhere,  Cave  v.  Crafts,  53  Cal.  135. 
But  in  all  these  cases,  as  well  as  in  Lampman  v.  Milks  itself,  the  easement  was 
implied  in  favor  of  the  grantee,  not  the  grantor.  So  Thomas  v.  Wiggers,  41  111. 
470,  478  ;  Sanderlin  v.  Baxter,  76  Va.  299  ;  Bump  v.  Saurer,  37  Md.  621  ;  Sutphen 
V.  Therkelson,  38  N.  J.  Eq.  318.  In  Rogers  v.  Sinsheimer,  50  N.  Y.  646,  where  the 
grants  were  simultaneous,  the  mutual  easement  was  clearly  one  of  necessity.     In 


292  INCORPOREAL    HEREDITAMENTS. 

anotlicr,  tlie  owner  of  a  mill  also  owned  a  spring  of  water  on 
another  lot,  and  constructed  an  artificial  conduit  from  the 
spring  to  his  mill-pond  to  help  supply  it  with  water.  He  then 
sold  the  spring  lot,  making  no  mention  of  the  spring ;  and  it 
was  held  that  the  right  to  the  vv^ater  from  the  same  became,  by 
such  severance  of  ownership,  appurtenant  to  his  mill.  So  that 
it  seems  that  the  two  tenements  need  not  be  parcels  of  one 
estate,  or  that  the  two  estates  need  not  be  adjacent  to  each 
other.i 

§  1248.  Of  Easements  created  by  Implied  Reservation.  —  A 
conflict  of  opinion  seems  to  have  arisen  in  cases  where  the 
easement  is  claimed  by  the  grantor,  by  th.e  way  of  implied 
reservation  out  of  the  part  that  is  granted,  and  the  point  may 
be  illustrated  by  the  case  of  a  drain  serving  two  houses  by 
passing  from  the  one  through  the  other  into  a  common  sewer. 
If  the  owner  grant  the  upper  one,  and  make  no  restriction, 
there  seems  to  be  little,  if  any,  dispute  that  he  would  by  so 
doing  grant  the  right  of  such  drain  as  an  easement  belonging 
to  the  upper  house ;  but  if  he  grant  the  lower  one,  the  rulings 
of  the  courts  differ  greatly  as  to  such  right  being  reserved  by 
implication  in  favor  of  the  upper  house.  The  chief  difference 
seems  to  be  this :  If  a  drain  in  such  case  is  necessary,  the 
leading  English  cases  formerly  held  that  the  law  would  imply 
such  a  reservation,  although  a  new  drain  for  the  upper  house 
might  be  supplied  over  the  grantor's  other  land  at  an  incon- 
siderable expense.^     Whereas  by  the   rule  in  Massachusetts, 

Pennsylvania,  however,  an  alley-way  constructed  on  one  tenement  for  the  use  of 
another  was  held  to  impose  an  casement  on  the  former  in  favor  of  the  latter,  though 
the  servient  parcel  was  granted  first.  Overdeer  v.  Updegraff,  69  Penn.  St.  110; 
Cannon  v.  Boyd,  73  Penn.  St.  179. 

1  Seymour  v.  Lewis,  13  N.  J.  Eq.  439. 

2  Pyer  v.  Garter,  1  Hurlst.  &  N.  916,  which  is  impugned  by  SufReld  v.  Brown, 
4  De  G.  J.  &  S.  18.5,  but  sustained  in  Ewart  v.  Cockrane,  4  McQueen,  117.,  cited  in 
1  Hurlst.  &  C.  681,  685,  is  referred  to  with  approval  in  Watts  v.  Kelson,  L.  R.  6  Ch. 
166,  168.  See  also  Washb.  Ease.  (3d  ed.)  65-72.  But  the  English  law  is  now  settled 
against  the  doctrine  of  implied  reservation  of  a  continuous  and  apparent  easement 
except  in  case  of  strict  necessity.  White  v.  Bass,  7  Hurlst.  &  N.  722  ;  Pearson  v. 
Spencer,  3  Best  &  S.  761/;  Crossley  v.  Lightowler,  L.  R.  2  Ch.  478  ;  Curriers  Co. 
V.  Corbett,  2  Dr.  &  Sin.  355  ;  Ellis  v.  Manch.  Carr.  Co.,  2  C.  P.  Div.  13;  "Wheeldon 
V.  Burrows,  12  Ch.  Div.  31 ;  Russell  v.  Watts,  25  Ch.  Div.  559.  Where,  however, 
the  grant  or  reservation  is  of  "all  ways  now  used,"  a  defined  way  will  pass  as  ex- 
pressly included.  Kooystra  v.  Lucas,  5  B.  &  A.  830;  Barkshire  v.  Grubb,  18  Ch. 
Div.  616. 


EASEMENTS.  293 

and  latterly  in  England,  while  it  is  conceded  that  if  the  drain 
is  necessary,  and  cannot  be  supplied  otherwise  by  any  reason- 
able expense,  the  right  of  easement  would  be  reserved  by  im- 
plication, it  is  held  there  would  not  exist  such  a  necessity  if  it 
could  be  replaced  or  supplied  elsewhere  by  a  reasonable  outlay 
of  expense.^  Though  both  classes  of  cases  would  probably 
agree  that  if,  as  in  one  of  the  Massachusetts  cases,  the  drain 
was  unknown  to  both  parties,  any  right  to  it  could  not  be  re- 
served to  the  grantor,  unless  the  easement  is  one  strictly  of 
necessity.^ 

§  1249.  Easements  acquired  by  Prescription. — A  much  more 
numerous  and  difficult  class  of  cases  arises  in  the  application 
of  the  doctrine  of  easements  by  prescription,  or  by  a  user  for 
such  a  length  of  time  as  to  raise  the  presumption  of  an  original 
grant.  The  suljject  involves  the  length  of  time  the  use  has 
been  enjoyed,  the  mode  and  extent  in  which  it  has  been  ap- 
plied, and  how  far  there  has  been  an  acquiescence  on  the  part 
of  the  owner  of  the  estate  which  is  adversely  affected  by  such  a 
user.  Originally  the  time  required  for  gaining  a  right  by  pre- 
scription began  from  some  point  anterior  to  the  memory  of 
man.  And  this  was  at  one  time  fixed  at  the  commencement 
of  the  reign  of  Richard  I.  But  as  it  was  always  open  to  be 
rebutted  by  proof  that  the  use  did  begin  within  the  period  of 
memory,  the  courts,  to  avoid  this,  and  to  sustain  privileges 
which  had  long  been  enjoyed,  adopted  the  notion  of  presuming 
an  ancient  grant  by  deed  which  had  been  lost  from  a  period  of 

1  Johnson  u.  Jordan,  2  Met.  234;  Thayer  v.  Pajme,  2  Cush.  327;  Cavbrey  v. 
Willis,  7  Allen,  364,  369.  In  Ramlall  v.  McLaughlin,  10  Allen,  366;  Warren 
V.  Blake,  54  Me.  276,  287  ;  Buss  v.  Dyer,  125  Mass.  287,  the  same  rule  was  applied 
in  case  of  simultaneous  grants.  See  ilcCarty  v.  Kitchenman,  47  Penn.  St.  239, 
243.  The  rule  of  law  in  Carbrey  v.  Willis  is  adopted  in  Scott  v.  Beutel,  23  Gratt. 
1 ;  Dollotf  V.  Bost.  &  xMe.  R.  K.,  68  Me.  173.  In  Janes  v.  Jenkins,  34  Md.  1,  where 
Pyer  v.  Carter  is  cited,  the  easement  enured  to  the  grantee ;  while  in  Mitchell  v. 
Seipel,  53  Md.  251,  a  passage-way  built  as  part  of  the  first  granted  tenement  was 
held  not  to  enure  by  way  of  reservation  to  the  one  retained  by  the  grantor.  In 
cases  of  party-walls,  the  easement  seems  clearly  one  of  necessity.  Ingals  v.  Pla- 
mondon,  75  111.  118  ;  Rogers  v.  Sinsheimer,  50  N.  Y.  646.  So  Morrison  v.  King, 
62  111.  30.  So  the  support  and  shelter  of  grantor's  half  of  a  building  by  grantees. 
Adams  v.  Marshall,  138  Mass.  228.  And  Richards  v.  Rose,  9  Exch.  218  ;  Pinning- 
ton  V.  Galland,  id.  1  ;  Davies  v.  Sear,  L.  R.  7  Eq.  427,  431,  are  placed  on  this 
ground  in  Wheeldon  v.  Burrows,  12  Ch.  Div.  31,  50-57. 

2  Carbrey  v.  Willis,  supra.     See  Washb.  Ease.  66-70. 


294  INCORPOREAL   HEREDITAMENTS. 

enjoyment,  the  length  of  which  was  in  some  measure  governed 
by  the  term  of  limitation  adopted  as  a  bar  to  the  claim  of  land 
itself,  till  it  became  a  settled  principle  of  the  common  law, 
that  such  an  enjoyment  for  the  term  of  twenty  years  raises  a 
legal  presumption  that  the  right  was  originally  acquired  by 
title.^*  Tiie  court  of  New  York,  in  commenting  upon  rights 
gained  by  enjoyment,  say :  "  The  modern  doctrine  of  presuming 
a  right,  by  grant  or  otherwise,  to  easements  and  incorporeal 
hereditaments,  after  twenty  years  of  uninterrupted,  adverse 
enjoyment,  exerts  a  much  wider  influence  in  quieting  posses- 
sion than  the  old  doctrine  of  title  by  prescription,  which  de- 
pended upon  immemorial  usage.  The  period  of  twenty  years 
has  been  adopted  by  the  courts  in  analogy  to  the  statute  limit- 
ing an  entry  into  lands ;  but  as  the  statute  does  not  apply  to 
incorporeal  rights,  the  adverse  use  is  not  regarded  a  legal  bar, 
but  only  a  ground  for  presuming  a  right  either  by  grant  or  in 
some  other  form."  The  occupation  in  such  cases  is  not  con- 
clusive, but  it  is  evidence  which  is  open  to  be  rebutted  by  evi- 
dence upon  the  other  side.^ 

§  1250.  Prescription,  -whether  Conclusive  or  Prima  Facie  Evi- 
dence of  a  Grant.  —  There  is  a  class  of  cases,  chiefly  those  of 
the  enjoyment  of  the  adverse  use  of  water,  where  the  courts 
have  been  inclined  to  treat  a  continued  adverse  enjoyment  as 

^  Note.  —  Each  State,  therefore,  may  have  its  own  period  of  prescription  or 
presumed  grant.  In  Connecticut  it  is  fifteen  years,  in  analogy  to  its  statute  of  limi- 
tations. Sherwood  v.  Burr,  4  Day,  244,  249;  Legg  v.  Horn,  45  Conn.  409,  415. 
Pennsylvania,  twenty-one  years.  Strickler  v.  Todd,  10  S.  &  R.  63,  69.  Massa- 
chusetts, twenty  years.     Sargent  v.  Ballard,  9  Pick.  251,  254. 

1  1  Rep.  Eng.  Com.  51;  1  Greenl.  Ev.  §  17;  Campbell  v.  Wilson,  3  East,  294, 
301 ;  Coolidge  v.  Learned,  8  Pick.  504,  508  ;  Ricard  v.  Williams,  7  Wheat.  59, 
110;  Sherwood  v.  Burr,  4  Day,  244,  249;  Bright  v.  Walker,  1  C.  M.  &  R.  211, 
217  ;  Best,  Presurapt.  103  ;  Hoy  v.  Sterrett,  2  Watts,  327,  330.  Even  though  the 
jury  should  not  have  found  that  any  deed  had  ever  been  in  fact  made.  Sargent  v. 
Ballard,  9  Pick.  251,  255  ;  Dalton  v.  Angus,  L.  R.  6  App.  Cas.  740,  765  ;  Lehigh 
Vail.  R.  R.  V.  McFarlan,  43  N.  J.  605. 

2  Parker  v.  Foote,  19  Wend.  309  ;  Curtis  v.  Keesler,  14  Barb.  511  ;  Doe  v. 
Reed,  5  B.  &  A.  232;  Sherwood  v.  Burr,  4  Day,  244,  250  ;  Tinkham  v.  Arnold, 
3  Me.  120,  123;  Holcroft  v.  Heel,  1  B.  &  P.  400:  Best,  Presumpt.  103,  n.  (Am. 
ed.)  ;  3  Dane,  Abr.  55,  who  treats  this  presumption  of  grant  from  twenty  years' 
enjoyment  as  a  modern  doctrine  of  doubtful  validity.  See  also  Mueller  v.  Fruen, 
36  Minn.  273 ;  s.  c.  30  N.   W.  Rep.  8S6. 


EASEMENTS.  295 

something  more  than  evidence  of  a  grant  or  title,  and  to  regard 
it  as  a  conclusive  presumption  of  title.  Thus,  in  Bealej  v. 
Shaw,i  EUenborough,  C.  J.,  says  :  "  I  take  it  that  twenty  years' 
exclusive  enjoyment  of  the  water  in  any  particular  manner 
affords  conclusive  presumption  of  right  in  the  party  so  enjoying 
it."  And  Story,  J.,  in  Tyler  v.  Wilkinson,^  says  :  "  By  our  law, 
upon  principles  of  public  convenience,  the  term  of  twenty  years 
of  exclusive,  uninterrupted  enjoyment  has  been  iield  a  conclu- 
sive presumption  of  a  grant  or  right."  "  The  presumption  is 
applied  as  a  presumption  juris  et  de  jure,  wherever  by  possi- 
bility a  right  may  be  acquired  in  any  manner  known  to  the 
law."  And  Vice-ChanccUor  Leach,  in  Wright  v.  Howard,^ 
sjlys :  "  Which  term  of  twenty  years  is  now  adopted  upon  a 
principle  of  general  convenience  as  affording  conclusive  pre- 
sumption of  a  grant."*  On  the  other  hand,  this  enjoyment 
has  been  held  to  be  only  evidence  of  a  grant  open  to  any 
controlling  evidence  as  to  the  mode  and  circumstances  under 
which  it  has  been  hold;  and  it  would  seem  that  the  principle 
of  its  being  a  conclusive  presumption  must,  if  ever  correct,  be 
limited  to  the  adverse  use  of  water.  And  even  if  so  limited,  it 
would  seem  to  be  open  to  the  criticism  of  the  editor  of  Best  on 
Presumptions  (p.  103),  who,  in  referring  to  the  expression  of 
Lord  EUenborough  above  cited,  that  it  is  "  a  conclusive  pre- 
sumption," remarks  that  it  would  be  "  an  expression  almost  as 
inaccurate  as  calling  the  evidence  a  bar ;''''  "whereas  the  clear 
meaning  of  the  cases  is,  the  jury  ought  to  make  the  presump- 
tion, and  act  definitely  upon  it,  unless  it  is  encountered  by 
adverse  proof."  ^    Whatever  discrepancy  there  may  be  between 

1  6  East,  208,  215. 

2  4  Mason,  397,  402. 

3  Wright  V.  Howard,  1  Sim.  &  S.  190,  203. 

4  Strickler  v.  Todd,  10  S.  &  R.  63,  69 ;  Sherwood  v.  Burr,  4  Day,  244,  2.50  ; 
1  Greeiih  Ev.  §  17;  Garrett  v.  Jackson,  20  Penn.  St.  331  ;  Sargent  v.  BaUard, 
9  Pick.  251,  255,  by  Putnam,  J. 

6  Best,  Presumpt.  §  88  ;  Bright  v.  Walker,  1  C.  M.  &  R.  211,  217  ;  3  Stark.  Ev. 
(3d  ed. )  911 ;  Wms.  Saund.  175  c,  n.  ;  Lamb  v.  Crosland,  4  Rich.  536,  543,  where 
it  is  said  Judge  Story  did  not  make  the  proper  distinction  between  a  proper  pre- 
scription and  a  presumption  of  a  non-e.xisting  grant,  the  latter  of  which  arises  after 
twenty  years'  enjoyment;  the  former  goes  beyond  h'gal  memory.  And  Gray,  J., 
says  :  "  The  dicta  of  Mr.  Justice  Story,  if  fairly  susceptible  of  a  wider  interpretation 
than  this  (that  a  prescription  cannot  he  mterrupted  by  a  disability  which  tloes  not 
come  into  existence  until  after  the  time  has  begun  to  run),  are  in  conflict  with. 


296  INCORPOREAL    HEREDITAMENTS. 

the  language  of  the  different  cases,  it  will  probably  be  found  to 
liave  arisen  from  the  courts  not  making  a  distinction  between 
the  ancient  doctrine  of  prescription,  which  was  from  its  very 
nature  conclusive,  as  it  went  bacli  beyond  the  period  of  evi- 
dence, and  the  modern  doctrine  of  prescription,  which  is 
another  name  for  presumption,  and  which,  like  all  legal  pre- 
sumptions of  evidence,  is  subject  to  be  negatived  or  controlled 
by  other  evidence.^ 

§  1251.  Limits  of  Prescriptive  Easements. — While,  in  the  case 
of  an  easement  created  by  grant,  the  language  made  use  of  by 
the  parties  limits  and  defines  their  respective  riglits,  in  the 
case  of  prescription  the  only  way  of  determining  these  rights 
is  by  referring  to  user  or  mode  and  extent  of  enjoyment  of 
what  is  claimed  for  the  requisite  period  of  time.^  Thus  there 
are,  as  will  be  seen  hereafter,  a  variety  of  kinds  of  way  known 
to  the  law ;  and  whether  a  man  has  acquired  a  footway,  a 
horseway,  or  a  carriageway,  by  prescription,  would  depend 
upon  the  evidence  of  the  mode  in  which  he  may  have  enjoyed 
it,  and  it  may  in  fact  have  been  used  for  so  many  purposes  as 
to  justify  a  jury  in  fii\ding  that  the  easement  is  a  general  right 

the  general  current  of  authority,  and  can  hardly  be  reconciled  with  the  opinion  of 
the  Suj)renie  Court  of  the  United  States,  as  delivered  by  the  same  learned  judge." 
Edson  V.  Munsell,  10  Allen,  557,  566. 

1  Waslib.  Ease.  66  et  scq.  and  cases  cited.  But  the  pre%'aillng  rule  in  England 
now  seems  to  be  that  the  presumption  of  a  grant  conclusively  arises  from  an  exclu- 
sive, open,  and  adverse  enjoyment.  Angus  v.  Dalton,  4  Q.  B.  Div.  162;  L.  R. 
6  App.  Cas.  740.  And  the  only  exception  is  the  incapacity  of  the  grantor.  Ibid.  750, 
795  ;  Rochdale  Can  Co.  v.  RadcliflFe,  18  Q.  B.  2S7.  And  the  same  rule  is  held  in 
some  States.  Lehigh  Val.  R.  R.  v.  McFarlan,  4-3  N.  J.  605,  628  ;  Wallace  v. 
Fletcher,  30  N.  H.  434.  The  propriety  of  the  criticism  of  the  text  will  appear 
more  clearly  when  the  effect  of  even  slight  circumstances  in  controlling  the  infer- 
ences to  be  drawn  from  mere  length  of  enjoyment  comes  to  be  considered.  And 
many  questions  which  it  had  been  somewhat  <lifficult  to  decide,  between  the  ancient 
doctrine  of  prescription  and  the  modern  one  of  presumed  grant,  have  been  settled 
in  England  by  the  statutes  3  &  4  Willianj  IV.  c.  71,  fixing  a  time  of  prescription 
in  certain  cases,  and  prescribing  what  shall  be  required  to  be  proved  to  establish 
the  rights  to  such  easements  as  water,  light,  ;ind  the  like.  Bright  v.  Walker, 
1  C.  M.  &  R.  217  ;  1  Greenl.  Ev.  §  17,  n.  1  ;  Tud.  Lead.  Cas.  114.  In  Massachu- 
setts, by  statute,  rights  to  light  and  air  cannot  be  acquired  by  prescription.  Mass. 
Pub.  Stat.  c.  122,  §§  1,  2.  As  to  what  easements  are  within  St.  Wm.  IV.  see  Sttirges 
V.  Bridgman,  11  Ch.  Div.  852  ;  Dalton  v.  Angus,  L.  R.  6  App.  Cas.  740. 

2  Olcott  V.  Thompson,  59  N.  H.  154.  Hence  the  servient  owner  may  change 
the  form  of  the  structure  in  which  the  easement  exists,  if  he  does  not  alter  the 
enjoyment.     Ibid. 


EASEMENTS.  297 

embracing  all  thcsc.^  So  where  a  fence  along  a  highway  has 
stood  for  twenty  years,  it  is  to  be  taken  as  the  true  limit  and 
boundary  of  the  way,  unless  controlled  by  positive  testimony, 
or  records,  or  monuments.'-^ 

§  1252.  Requisites  of  Prescriptive  User.  —  In  order  that  uSCr 
may  ripen  into  a  prescriptive  title,  it  must  be  uninterrupted  in 
the  land  of  another,  by  the  acquiescence  of  the  owner,  for  a 
period  of  at  least  twenty  years  (or  the  period  of  limitation  of 
the  State  where  the  land  lies),  under  an  adverse  claim  of  right ; 
while  all  persons  concerned  in  the  estate,  in  or  out  of  which  it 
is  derived,  are  free  from  disability  to  resist  it,  and  are  seised 
of  the  same  in  fee  and  in  possession  during  the  requisite  period. 
Where  all  these  circumstances  concur,  it  raises  a  prima  facie 
evidence  of  a  right  to  such  easement  acquired  by  a  grant  which 
is  now  lost.^ 

§1253.  Enjoyment  must  be  adverse.  —  Many  of  the  cases 
make  use  of  the  term  "  adverse  enjoyment,"  which  is  substan- 
tially the  same  as  its  being  enjoyed  under  a  claim  of  right 
against  the  owner  of  the  land  out  of  which  the  easement  is 
derived.  And  all  the  cases  concur  in  the  doctrine,  that  the 
right  must  be  exercised  adversely  to  that  of  the  landowner, 
since  no  length  of  enjoyment  by  his  permission,  and  under  a 
recognition  of  his  right  to  grant  or  withhold  it  at  his  pleasure, 
will  ripen  into  an  easement.*  Thus  one  owning  two  adjoining 
parcels  of  land  permitted  another  to  occupy  one  of  the  parcels 
under  an  expectation  that  he  would  purchase  it,  and  also  to 
make  use  of  a  well  upon  the  other  parcel ;  and  this  continued 
ten  years,  when  the  owner  sold  the  parcel  having  the  well  upon 
it  to  a  third  party.  The  occupant  of  the  other  parcel  having 
acquired  a  title  to  the  same,  continued  to  use  the  well  for  more 
than  another  ten  years,  when  he  was  forbidden  to  use  it;  and 
it  was  held  that  he  had  not  acquired  a  right  so  to  do  by  ad- 
verse enjoyment.^     In  order  to  gain  an  easement  by  prescrip- 

1  Cowling  V.  Higginson,  4  M.  &  W.  245  ;  Brunton  v.  Hall,  1  Q.  B.  792. 

2  Pettingill  v.  Porter,  3  Allen,  349. 

8  Except  In  the  case  of  easements  of  light  and  air,  in  neaily  all  of  the  States,  as 
to  which  see  post,  §  1281. 

4  Dexter  v.  Tree,  117  111.  532  ;  s.  c.  6  N.  E.  Rep.  506  ;  Minneapolis  W.  R'y 
Co.  V.  Minneapolis  &  St.  L.  R'y  Co.,  58  Minn.  128  ;  s.  c.  59  N.  W.  Pvep.  983  ; 
Elster  V.  Springfield,  49  Ohio  St.  82  ;  s.  c.  30  N.  E.  Rep.  274. 

6  Stevens  v.  Dennett,  51  N.  H.  324.     So  Sturgcs  v.   Bridgman,   11   Ch.  Div. 


298  INCORPOREAL    HEREDITAMENTS. 

tion,  there  must  be  an  adverse  enjoyment  of  what  is  claimed 
during  all  the  requisite  time ;  and  this  must  be  so  notorious, 
that  the  owner  of  the  servient  estate  may  be  presumed  to  have 
knowledge  of  its  being  adverse. ^  The  inference  of  a  grant,  if 
raised  at  all,  is  derived  from  a  claim  on  the  one  side,  and  a 
yielding  on  the  other,  of  that  which  can  properly  be  created 
only  by  grant.  Where  two  adjacent  owners  built  a  party-wall 
between  their  estates,  resting  it  upon  an  arch,  one  leg  of  which 
stood  upon  the  land  of  one  owner,  and  the  other  upon  that  of 
the  other,  and  the  archway  was  used  by  them  as  a  common 
passage-way,  it  was  held  to  be  such  an  adverse  user  by  each  of 
the  other's  land  as  to  give  him  a  prescriptive  right  to  have  the 
wall  thus  supported.^  So  an  uninterrupted  enjoyment  of  a 
way  across  another's  lands  for  twenty  years,  unexplained,  was 
presumed  to  be  under  the  claim  and  assertion  of  a  right  adverse 
to  the  owner,  not  only  giving  title  by  prescription,  but  raising 
a  presumption  of  a  grant.^  It  is  no  objection  to  the  acquiring 
of  an  easement  by  adverse  enjoyment  that  it  began  by  permis- 
sion, if  claimed  adversely  during  the  requisite  period  as  a 
matter  of  riglit.^  Thus  where  the  grantee  of  a  piece  of  land, 
on  receiving  his  deed,  agreed  with  the  grantor  that  he,  the 
grantor,  might  continue  to  use  a  way  across  it  as  he  had  been 
accustomed  to  do,  it  was  held  that  he  might  show  this,  after 
enjoying  the  way  for  twenty  years,  as  evidence  that  he  did  it 
under  a  claim  of  right.^ 

832,  where  the  acts  only  became  adverse  when  a  change  of  occupancy  made  them 
a  nuisance.  So  Root  v.  Commonwealth,  98  Penn.  St.  170;  Webb  v.  Bird,  10  C.  B. 
N.  s.  268. 

1  Morse  v.  Williams,  62  Me.  445  ;  Ward  v.  Warren,  82  N.  Y.  265  ;  Partridge 
V.  Scott,  3  M.  &  W.  220,  229;  Dalton  v.  Angus,  L.  R.  6  App.  Cas.  740,  766,  801. 

2  Dowling  V.  Henniugs,  20  Md.  179,  184. 

3  Miller  v.  Garlock,  8  Barb.  153  ;  Bowen  v.  Team,  6  Rich.  (S.  C.)  298;  Towns- 
end  V.  McDonald,  12  N.  Y.  381 ;  Warreu  o.  Jacksonville,  15  111.  236  ;  Pue  v.  Pue, 
4  Md.  Ch.  Dec.  386  ;  Hoy  v.  Sterrett,  2  Watts,  327,  330  ;  Garrett  v.  Jackson, 
20  Penn.  St.  331 ;  Onley  v.  Gardiner,  4  M.  &  W.  496,  500  ;  Tickle  v.  Brown, 
4  Ad.  &  E.  369 ;  Mon.  Canal  Co.  v.  Harford,  1  C.  M.  &  R.  614,  631. 

*  Legg  V.  Horn,  45  Conn.  409,  415 ;  Clark  v.  Gilbert,  39  Conn.  94. 

5  Ashley  v.  Ashley,  4  Gray,  197  ;  Arbuckle  v.  Ward,  29  Vt.  43.  It  should  be 
added,  that  in  the  former  case  the  grantor  was  to  have  the  way  "  as  if  in  the  deed," 
which  made  it  as  of  right,  since  a  grantee  in  fee  holds  adversely.  See  Wiseman  v. 
Lucksinger,  84  N.  Y.  31,  44  ;  St.  Vincent  Asylum  v.  Troy,  76  N.  Y.  108,  that  an 
agreed  use,  even  on  consideration,  imports  only  a  license,     A  purchaser  in  fee  is  a 


EASEMENTS.  299 

§  1254.  Requisites  of  an  Adverse  Use.  —  To  constitute  SUch 
an  adverse  enjoyment  as  will  give  a  party  an  easement  in  an- 
other's land,  it  must  be  had  while  tliere  is  some  one  to  whom 
such  use  is  adverse.^  It  must,  moreover,  be  open,  and  such  as 
the  owner  is  presumed  to  be  cognizant  of.  If  stealthily  done, 
it  would  not  give  a  right.^  But  it  is  no  objection  that  the  user 
began  in  trespass.^  And  it  has  been  held  that  mere  passing 
across  open  unenclosed  land  would  not  gain  a  right  of  way, 
without  something  to  show  that  by  so  doing  a  right  to  such 
use  was  asserted  ;  *  though,  in  some  cases,  the  use  of  a  way 
across  even  wild  lands  has  been  held  to  give  an  casement 
therein.^  This  would  probably  depend  upon  the  nature  of  the 
use,  and  how  far  it  indicated  that  it  was  done  in  the  exercise 
of  a  claim  of  right.  The  enjoyment  of  the  natural  flow  of 
water  through  the  land  of  the  owner  of  the  soil  is  not  deemed 
adverse  so  as  to  give  him  a  technical  easement  therein  ;  and 
the  same  would  be  true  of  light  and  air  in  connection  with 
lands  or  tenements,  if  there  had  not  grown  up,  by  the  common 
law  of  England,  a  right  to  prevent  another  from  interrupting 
their  enjoyment  in  connection  with  a  dwelling-house,  shop, 
and  the  like,  after  the  ordinary  period  of  prescription,  as  will 
be  hereafter  explained.^ 

§  1255.  There  must  be  some  one  capable  of  granting.  —  [Pre- 
scriptive user  raising  the  presumption  of  a  grant,  there  must 
be  someone  against  whom  the  presumption  can  run  —  there 
must  be  some  one  against  whom  the  use  is  adverse  and  who  is 

mere  licensee  until  deed  or  payment  in  full.  Drew  v.  Towle,  30  N.  H.  531 ; 
Stevens  v.  Dennett,  51  N.  H.  324.  In  England,  since  Stat.  2  &  3  Wm.  IV.  c.  72, 
a  claim  may  be  "as  of  right,"  though  begun  by  permission,  Goddard,  Ease.  169, 
172 ;  though  subsequent  permission  bars  it,  Bright  v.  Walker,  1  C.  M.  &  R.  211  ; 
Tickle  V.  Brown,  supra;  Gaved  v.  Martyn,  19  C.  B.  n.  s.  732. 

1  Hoy  V.  Sterrett,  2  Watts,  327  ;  Hurlbut  v.  Leonard,  Brayt.  201  ;  Manning 
V.  Smith,  6  Conn.  289  ;  Felton  v.  Simi)Son,  11  Ired.  84 ;  Sturges  v.  Bridgman, 
11  Ch.  Div.  852.  So  Murphy  v.  Welch,  128  Mass.  489,  use  of  a  way  by  a  grantee 
of  a  mortgagor  did  not  become  adverse  till  the  mortgagee  took  possession. 

2  Onley  v.  Gardiner,  4  M.  &  W.  496,  500;  Tickle  v.  Brown,  4  Ad.  &  E.  369, 

3  Sibley  v.  Ellis,  11  Gray,  417. 

*  Watt  V.  Trapp,  2  Rich.  136  ;  Gibson  v.  Durham,  3  Rich.  85. 
6  Reimer  v.  Stuber,  20  Penn.  St.  458. 

6  Sury  V.  Pigot,  Poph.  166  ;  Tud.  Lead.  Cas.  104,  105  ;  Moore  v.  Rawson,  3  B. 
&  C.  332;  Parker  v.  Foote,  19  Wend.  309, 


300  INCORPOREAL    HEREDITAMENTS. 

capable  of  making  the  grant.^  Thus  the  presumption  will  not 
arise  against  one  who  was,  at  the  time  of  the  commencement 
of  the  user,  an  infant  or  a.  feme  covert  ;^  nor  against  a  tribe  of 
Indians  forbidden  by  statute  to  sell  their  land  ;^  nor  against  an 
insane  person ;  *  nor  against  a  ward  whose  lands  are  held  by  a 
guardian.^  But  a  disability  arising  after  the  use  has  become 
adverse,  does  not  suspend  the  acquisition  of  the  right  or 
extend  the  time  necessary  to  acquire  it;^  nor  can  a  second 
disability  be  added  to  one  which  existed  when  the  user  beganJ] 
Again,  if  while  the  use  of  that  which  is  claimed  as  an  easement 
is  being  had,  the  land  in  which  it  is  claimed  is  in  possession 
of  a  tenant,  it  would  not  give  such  right  of  easement  against 
the  reversioner.^  Nor  would  the  one  using  the  privilege  gain 
an  casement  against  the  tenant  himself,  since  the  former  by 
using  the  easement  cannot  get  a  title  to  the  same  against  the 
owner  of  the  inheritance,  and  no  presumed  grant  from  the 
lessee  will  be  raised  by  the  user,^  On  the  other  hand,  an  ease- 
ment enjoyed  by  a  widow  in  another's  land  in  respect  to  her 
dower  lands  ceases  upon  the  determination  of  her  estate.^^ 

1  Hoy  V.  Sterrett,  2  Watts,  327  ;  Hurlbut  v.  Leonard,  Brayt.  201  ;  Maiming  v. 
Smith,  6  Conn.  289  ;  Felton  v.  Simpson,  11  Ired.  84  ;  Sturges  v.  Biidgman,  L.  K. 
11  Ch.  Div.  852.  The  use  of  a  right  of  way  by  the  grantee  of  a  mortgagor  (common 
law)  did  not  become  adverse  to  the  mortgagee  until  he  took  possession.  Murphy 
V.  Welch,  128  Mass.  489. 

2  Eeimer  v.  Stuber,  20  Penn.  St.  458. 

3  Woodworth  v.  Raymond,  51  Conn.  70. 
*  Edson  V.  Munsell,  10  Allen,  557. 

6  Watkins  v.  Peck,  13  N.  H.  360  ;  s.  c.  40  Am.  Dec.  156. 

6  Ballard  v.  Demmon,  156  Mass.  449  ;  s.  c.  31  N.  E.  Eep.  635. 

^  Eeimer  v.  Stuber,  supra. 

8  Bradbury  v.  Grinsell,  2  Wms.  Sannd.  175  d,  n.  ;  Pierre  v.  Fernnkl,  26  Me. 
436,  440  ;  Daniel  v.  North,  11  East,  370  ;  Sargent  v.  Ballard,  9  Pick.  251 ;  Barker 
i;.  Richardson,  4  B.  &  A.  579  ;  Washb.  Ease.  114  ;  Winship  r.  Hudspeth,  10  Exoh.  5. 
So  no  prescription  runs  where  there  was  no  capacity  to  grant,  Wright  v.  Wriglit, 
21  Conn.  325,  345;  Woodworth  v.  Raymond,  51  Conn.  70;  or  to  be  granted, 
Dalton  V.  Angus,  L.  R.  6  App.  Cas.  740,  795  ;  Brookline  v.  Mackintosh,  133  Mass. 
215,  226. 

8  Bright  i;. Walker,  1  C.  M.  &E.  211.  This  would  seem  to  rest  upon  the  statute 
of  2  &  3  Wm.  IV.  c.  71.  In  this  case  the  court  say  they  do  not  intend  to  say  any- 
thing to  prevent  the  operation  of  an  actual  grant  by  one  lessee  to  anotlier,  nor 
prevent  the  jury  from  taking  the  possession  into  consideration,  with  other  cii- 
cumstances,  as  evidence  of  a  grant  which  they  may  still  find  to  have  been 
made. 

"»  Hoffman  v.  Savage,  15  Mass.  130. 


EASEMENTS.  301 

§  1256.  One  Test  of  Adverse  Use.  —  Wlicrc  Olie  was  accus- 
tomed to  turn  his  cattle  upon  his  own  land  to  depasture  the 
same,  between  which  and  a  beach  there  was  no  fence,  and 
the}^  were  in  the  habit  of  going  on  to  this  beacli  to  feed,  there 
was  held  not  to  be  such  an  adverse  enjoyment  of  the  right  as 
to  give  him  an  easement  to  feed  his  cattle  upon  the  beach.^ 
And  one  test,  whether  an  easement  may  have  been  gained  by 
an  enjoyment  which  is  adverse  or  not,  is,  whether  it  is  injurious 
to  the  right  of  others.  If  it  is  not,  it  will  not  ordinarily  lay  a 
foundation  for  a  prescription  ;  though,  as  hereafter  shown,  this 
is  not  always  true.^  And  where  the  user  does  not  inflict  any 
immediate  and  palpable  injury  to  the  landowner  in  possession, 
the  enjoyment  will  not  be  adverse,  in  the  sense  of  the  law, 
unless  it  is  with  the  knowledge  of  the  owner  of  the  estate  in 
which  it  is  sought  to  claim  an  easement.'^  But  knowledge  of 
the  owner  is  not  required  in  cases  of  way  and  common.'* 

§  1257.  Permissive  Use  not  prescriptive.  —  If,  therefore,  it 
can  be  shown  that  the  enjoyment  of  the  right  or  privilege 
claimed,  during  any  part  of  the  time  in  which  it  was  said  to 
have  been  gained  by  user,  was  by  permission  of  the  owner  of 
the  land,  the  idea  of  its  being  adverse,  and  as  of  right,  and 
therefore  an  easement,  is  negatived.^  Thus  where  A,  by  per- 
mission of  B,  constructed  a  drain  from  B's  land  through  his 
own  to  a  river,  and  this  remained  so  for  tvrenty  years,  when  A 
closed  it  up  upon  his  land,  it  was  held  that  B  had  gained  no 
prescriptive  right  to  maintain  the  drain,  as  the  user  had  not 
been  adverse.^     And  an  admission  to  this  effect,  after  the  ex- 

1  Donnell  v.  Clark,  19  Me.  174. 

2  Doniiel  V.  Clark,  supra;  Parker  v.  Hotchkisa,  25  Conn.  321,  330;  "VVheatley 
r.  Baiigh,  25  Penn.  St,  528.  So  it  was  early  held  in  ]\Iaine  that  as  the  statute  per- 
mitted flowage,  if  paid  for,  it  was  not  an  injury,  but  matter  of  compensation,  and 
not  adverse.  Tinkham  v.  Arnold,  3  Me.  120;  Seidensparger  v.  Spear,  17  JMe.  123, 
128.  But  the  contrary  rule,  laid  down  in  Williams  v.  Nelson,  23  Pick.  141,  has 
since  been  followed.  Nelson  v.  Butterlield,  21  Me.  220  ;  Augusta  v.  Moulton, 
75  Me.  284. 

8  Daniel  v.  North,  11  East,  372  ;  Hogg  v.  Gill,  1  McMull.  329  ;  Nash  v.  Peden, 
1  Speers,  17  ;  Hoy  v.  Sterrett,  2  Watts,  327,  330  ;  Washb.  Ease.  111. 

*  Daniel  v.  North,  11  East,  372  ;  Florida  So.  R'y  Co.  v.  Loring,  2  U.  S.  App. 
310  ;  s.  c.  51  Fed.  Rep.  932. 

6  Flora  V.  Carbean,  38  N.  Y.  111.  So  where  the  public  are  permitted  to  use  a 
private  ferry.     Root  v.  Commonwealth,  98  Penn,  St.  170. 

6  Smith  V.  Miller,  11  Gray,  145,  148. 


302  INCORPOREAL    HEREDITAMENTS, 

piration  of  the  twenty  years,  may  operate  to  defeat  a  claim  of 
its  being  an  easement. ^  So  an  offer,  during  the  alleged  period 
of  prescription,  by  the  owner  of  the  dominant  tenement,  to 
purchase  the  right  of  the  servient  one,  would  rebut  the  pre- 
sumption of  an  easement  gained  by  twenty  years'  enjoyment.^ 

§  1258.  Another  Illustration  of  the  principle  that  one  may 
not,  by  enjoyment  of  a  privilege,  acquire  a  right  to  claim  it  as 
an  easement,  or  maintain  an  action  for  being  deprived  of  it,  if 
it  has  not  been  adverse,  is  found  in  the  case  of  one  owning 
land  upon  a  stream,  the  waters  of  which  had  been  so  regu- 
lated and  controlled  by  a  dam  and  mill  above,  belonging  to 
another,  as  to  prevent  their  overflowing  this  land  for  more 
than  twenty  years.  After  this,  the  mill-owner  removed  his 
dam,  and  the  waters  in  the  stream  thereupon,  at  times,  flowed 
over  and  damaged  the  land  as  they  had  formerly  done.  It 
was  held,  that,  as  the  enjoyment  of  this  protection  to  the  land 
had  been  in  no  sense  adverse  to  the  proprietorship  of  the  "mill 
and  dam,  it  created  no  easement  to  have  the  water  coutroUed 
by  them,  and  the  landowner  was  without  remedy  for  the  in- 
jury he  sustained  by  their  removal.^ 

§  1259.  Of  the  Owner's  Knowledge  and  Acquiescence.  —  [It 
has  been  said  that  the  use  must  be  with  the  knowledge  and 
acquiescence  of  the  owner  of  the  land.  This  is  not  the  rule  in 
England.^  Acquiescence  presupposes  knowledge,  and,  if  the 
latter  bs  not  required,  proof  of  mere  non-acquiescence  will  not 
defeat  the  easement  —  mere  verbal  protests  and  denials  of 
right  will  not  work  an  interruption.^  In  such  cases,  an  inter- 
ruption by  the  owner  must  consist  of  such  an  overt  act  as,  if 
wrongful,  would  be  actionable.^  Nevertheless,  there  is  high 
authority  in  this  country  for  the  rule  that  even  a  right  of  way 

1  Bright  V.  Walker,  1  C.  M.  &  R.  211,  219  ;  Sargent  v.  Ballard,  9  Pick.  251, 
255  ;  Church  v.  Burghardt,  8  Pick.  327  ;  Beasley  v.  Clarke,  2  Bing.  N.  C.  705, 
706  ;  Tickle  v.  Brown,  4  Ad.  &  E.  369  ;  Mou.  Canal  Co.  v.  Harford,  1  C.  M.  &  R. 
614,  per  Lord  Lyndhnrst ;  Onley  v.  Gardiner,  4  M.  &  W.  500. 

2  Watkins  v.  Peck,  13  N.  H.  360. 
8  Felton  V.  Simpson,  11  Ired.  84. 

*  Angus  r.  Dalton,  4  Q.  B.  Div.  162  ;  Cross  v.  Lewis,  2  B.  &  C.  686. 

6  School  Dist.  V.  Lj-nch,  33  Conn.  330  ;  Connor  v.  Sullivan,  40  Conn.  26  ; 
Lehigh  Valley  R.  R.  v.  McFarlan,  43  N.  J.  L.  605;  Okeson  v.  Patterson,  29  Penn. 
St.  22  ;  Kimball  v.  Ladd,  42  Vt.  747. 

6  Sear.s  v.  Hayt,  37  Conn.  406. 


EASEMENTS.  303 

cannot  be  acquired  b)^  prescription  witliout  the  acquiescence, 
actual  or  implied,  of  tlie  owner,  and  that  the  presumption  of 
acquiescence  arising  from  actual  knowledge  may  be  rebutted 
by  proof  of  verbal  protests,  interdictions,  and  denials  of 
right. ^] 

§  1260.  The  Enjoyment  must  be  continuous  and  uninterrupted 
for  the  requisite  term  of  timc.^  Of  course  this  must  be  accord- 
ing to  the  nature  of  the  easement,  as  there  must  obviously  be 
a  different  degree  of  continuity  in  ever  so  frequent  use  of  a 
mere  passage-way,  and  that  of  flowing  another's  land,  or 
enjoying  light  and  air  over  vacant  land  of  another.  Besides, 
the  mere  ceasing  to  use  an  easement  where  there  is  no  opposi- 
tion to  its  enjoyment,  is  something  different  from  what  is 
meant  by  an  interruption  of  its  enjoyment.^  Nor  would  a 
mere  change  in  the  form  of  the  estate,  in  which  it  is  claimed 
that  an  easement  has  been  gained,  be  an  interruption  in  the 
meaning  of  the  law.  As  where  a  man  has  used  the  waters  of 
a  stream  for  more  than  twenty  years,  but,  during  that  period, 
the  owner  of  the  land  above  had  changed  the  direction  of  the 
water  through  the  same,  it  was  held  to  be  no  interruption  of 
the  enjoyment  or  the  right.*  So  it  is  not  necessary  that  one, 
to  gain  an  easement  of  water,  should  have  used  it  precisely  in 
the  same  manner,  or  for  driving  the  same  machinery  during 
the  requisite  time,  a  change  in  this  respect  not  being  an  inter- 

1  Powell  V.  Bagg,  8  Gray,  441  ;  Nichols  v.  Aj'lor,  7  Leigh,  546  ;  Chicago  &  N". 
W.  R.  R.  V.  Hoag,  90  111.  339;  Connor  w.  Woodfill,  126  Iiid.  85;  s.  c.  25  N.  E. 
Eep.  876  ;  s.  c.  22  Am.  St.  Rep.  568.  But  in  th(^  last  case  there  were  promises  on 
the  part  of  the  user  to  renaove  the  cause  of  complaint,  showing  absence  of  claim  of 
right.  And  see  Wallace  v.  Fletcher,  30  N.  H.  434  ;  Miller  v.  Garlock,  8  Barb. 
153. 

2  By  the  Stat.  2  &  3  Wm.  IV.  c.  71,  this  must  be  for  tlie  period  next  preceding 
the  bringing  of  the  action.  See  Hollins  v.  Verney,  13  Q.  B.  D.  304,  where  the 
cases  are  reviewed. 

3  Gale  &  What.  Ease.  87  ;  Onley  v.  Gardiner,  4  U.  &  W.  500  ;  Bright  v. 
Walker,  1  C.  M.  &  R.  211,  219;  Flight  v.  Thomas,  8  CI.  &  F.  231  ;  Garrett  v. 
Jackson,  20  Penn.  St.  331  ;  Sargent  v.  Ballard,  9  Pick.  251,  255  ;  Co.  Lit.  113  &; 
Bracton,  fol.  51,  52 ;  Wood  v.  Kelley,  30  Me.  47  ;  Carr  v.  Foster,  3  Q.  B.  581  ; 
Carlisle  v.  Cooper,  19  N.  J.  Eq.  256.  See  Hollins  v.  Verney,  13  Q.  B.  Div.  304, 
where  the  test  is  said  to  be  that  the  user  should  be  ''  enough  to  carry  to  the  mind 
of  a  reasonable  person  in  possession  of  the  .servient  tenement  the  fact  that  acoutin- 
uons  right  is  being  asserted." 

*  Hall  V.  Swift,  4  Bing.  N.  C.  381  ;  Bullen  v.  Runnels,  2  N.  H.  255. 


304:  INCORPOREAL    HEREDITAMENTS. 

ruption  of  his  enjoyment.^  Nor  would  it  affect  his  right  that 
he  had  changed  the  diameter  of  his  wheel,  provided  he  did  not 
thereby  use  more  water  than  was  necessary  to  carry  the  origi- 
nal wheel.^  So  where  there  was  a  grant  of  a  right  of  way  for 
the  purpose  of  carrying  coals,  and,  after  using  a  common  drift- 
way, the  grantee  substituted  a  trayn  wagon-way,  which  had 
been  found  to  be  more  convenient,  it  was  held,  that  he  did  not 
thereby  impair  his  right  of  way.^  But  where  the  easement 
claimed  is  acquired,  if  at  all,  by  user,  any  essential  change  in 
the  mode  or  extent  of  the  user  will  prevent  the  acquisition  of 
the  easement,  if,  after  such  change,  the  user  shall  not  have 
been  continued  for  the  term  of  twenty  years.  Thus,  where  a 
town  had  enjoyed  a  drain  to  discharge  water  upon  another's 
land  for  less  than  twenty  years,  and  then  deepened  and  en- 
larged it,  and  varied  its  course,  but  continued  to  use  it,  it  was 
held,  that  such  change  interrupted  the  use,  and  prevented 
their  thereby  acquiring  the  easement  of  the  drain,  short  of 
twenty  years'  enjoyment  of  it  as  it  then  was.  And  the  same 
principle  was  applied  to  the  case  of  a  drain  from  a  cellar  into 
the  same  town  drain,  where  the  owner  of  the  cellar  altered  his 
drain  so  as  to  enter  it  into  the  town  drain  after  it  had  been 
altered.* 

§  1261.  The  Time  of  Adverse  User,  in  order  that  such  user  may 

1  Belknap  v.  Trimble,  3  Paige,  577,  605  ;  Luttrel's  Case,  4  Rep.  87,  a  case  of 
changing  a  fulling-tnill  into  a  corn-mill,  for  the  use  of  which  the  right  of  water  was 
claimed  by  prescription. 

2  Saunders  v.  Newman,  1  B.  &  A.  258  ;  Whittier  v.  Cocheco  Mfg.  Co.,  9  17.  H. 
454. 

8  Senhonse  v.  Christian,  1  T.  R.  560. 

*  Cotton  V.  Pocasset  Mfg.  Co.,  13  Met.  429.  Where  one  made  use  of  a  way  for 
the  term  of  one  year,  and  then  suspended  the  use  of  it  for  five  years,  when  he  re- 
newed it  again,  it  was  held  not  to  have  been  continuous  so  as  to  establish  a  pre- 
scriptive right  to  its  enjoyment.  Watt  v.  Trapp,  2  Rich.  136.  So,  where  one  who 
owned  a  mill  and  mill-yard  laid  boards  upon  an  adjoining  lot  of  land  for  twenty- 
four  years  in  succession,  except  an  interval  of  five  years,  during  which  he  did  not 
use  the  privilege,  it  was  held  not  to  be  a  continuous  use  for  the  time  requisite  to 
acquire  an  easement.  Pollard  v.  Barnes,  2  Gush.  191.  So  where,  to  an  action  of 
trespass  quare  dausum  fregit,  the  defendant  prescribed  for  a  right  of  way  by  forty 
years'  enjoyment  next  before  the  suit  brought,  and  failed  to  show  an  enjoyment  of 
it  during  four  or  five  years  before  the  bringing  of  the  action,  it  was  held,  that  this 
proof  was  defective  in  establishing  an  uninterrupted  enjoyment  within  the  English 
statute  of  prescription.  Parker  v.  Mitchell,  11  Ad.  &  E.  788  j  Stat.  2  &  3  Wni.  IV. 
c.  71;  Hollius  V.  Verney,  13  Q.  B.  Div.  304. 


EASEMENTS.  305 

ripen  into  prescriptive  title,  is  commensurate  with  the  time 
within  which,  by  the  h)cal  law,  the  right  of  making  an  entry  into 
lands,  or  bringing  ejectment  for  the  same,  is  limited.  In  Eng- 
land, and  most  of  the  States,  this  period  is  twenty  years. ^  In 
Pennsylvania,  the  period  of  presumption  of  a  grant  is  twenty- 
one  years.^  But  the  rule  is  a  general  one,  that  an  enjoy- 
ment of  what  is  claimed  as  an  easement  for  any  time  less 
than  the  prescribed  period  of  limitation  of  the  place  is  not 
even  prima  facie  evidence  of  a  grant  of  such  easement,  and 
gives  no  right  to  the  same.^  And  fixing  the  time  or  event 
from  which  the  computation  of  the  term  of  enjoyment  is  to  be 
made,  it  would  seem  to  be  that  at  which  the  enjoyment  became 
complete ;  as  where  the  question  was  in  relation  to  flowing  of 
lands  by  a  mill-dam,  it  was  held,  that  the  period  from  which 
such  computation  was  to  be  made  was  when  the  dam  was  in  a 
suitable  condition  to  stop  the  water,  and  not  when  the  structure 
was  commenced.^  And  the  extent  of  the  right  thereby  ac- 
quired was  limited  by  the  height  to  which  the  flowing  had  been 
maintained  during  the  requisite  period  of  time.^  And  the 
maintenance  of  the  dam  at  a  uniform  height  would  fix  the  ex- 
tent of  the  right  to  flow,  although  a  part  of  the  time  during 
the  twenty  years,  by  reason  of  leaking  or  want  of  repair,  the 
dam  may  not  have  kept  up  the  water  to  its  original  height  in 
the  pond.^ 

1  Gale  &  "What.  Ease.  94;  Daniel  v.  Noith,  11  East,  372;  Parker  v.  Foote, 
19  Weiul.  309;  Bradbury  w.  Grinsell,  2  Saund.  175  a  ;  Hogg  v.  Gill,  1  McMull. 
329;  Nash  ?;.  Pedeii,  1  Speers,  17;  Maiiier  «.  Myers,  4  B.  Mon.  514;  Melvin  y. 
Whiting,  13  Pick.  184  ;  Hazard  v.  liobiiison,  8  Mason,  272  ;  Coining  v.  Gould, 
16  Wend.  531,  534  ;  Tyler  v.  Wilkinson,  4  Mason,  397  ;  Sargent  v.  Ballard,  9  Pick. 
251;  Gayetty  v.  Bethune,  14  Mass.  49.  In  Borden  v.  Vincent,  24  Pick.  301, 
this  terra  was  held  sufficient,  although  the  dam  claimed  for  the  benefit  of  the  mill 
had  been  also  used  as  a  public  highway  across  a  navigable  stream.  Esling  v.  Wil- 
liams, 10  Penn.  St.  126  ;  McCready  v.  Thompson,  Dudl.  (S.  C.)  131;  Watkins  v. 
Peck,  13  N.  H.  360  ;  1  Greenl.  Ev.  §  17  ;  Carlisle  v.  Cooper,  19  N.  J.  Eq.  256, 
262. 

2  Okeson  v.  Patterson,  29  Penn.  St.  22. 

3  Green  v.  Chelsea,  24  Pick.  71,  79  ;  Luther  v.  Winnisimmet  Co.,  9  Gush.  171; 
Carlisle  v.  Cooper,  supra. 

*  Branch  v.  Doane,  17  Conn.  402. 

5  Wood  V.  Kelley,  30  Me.  47  ;  Cowell  v.  Thayer,  5  Met.  258  ;  Ray  v.  Fletcher, 
12  Cash.  200  ;   Vickcrie  v.  Buswell,  18  Me.  289. 

6  .Jackson  v.  Harrington,  2  Allen,  243;  Cowell  y.  Tha3'er,  supra;  Carlisle  v. 
Cooper,  19  N.  J.  Fji.  256. 

VOL.   II.  —  20 


306  INCORPOREAL   HEREDITAMENTS. 

§1262.  Time,  how  computed.  —  In  computing  the  twenty 
years  of  enjoyment,  it  is  not  essential  that  the  easement 
should  have  been  used  during  the  whole  time  by  the  same  per- 
son, provided  there  was  a  privity  of  estate  in  those  who  have 
enjoyed  it.  Thus,  if  an  ancestor  die  before  enjoying  an  ease- 
ment for  twenty  years,  and  his  heir  contiime  to  use  it  for  the 
balance  of  the  time,  it  will  be  sufficient.  So,  when  the  use  is 
continuous  by  the  seller  and  purchaser  successively  of  the  dom- 
inant estate  for  the  requisite  period  of  time.^ 

§  1263.  Public  cannot  acquire  Prescriptive  Right. — Although 
the  inhabitants  of  a  particular  village  or  locality  may  acquire 
a  right  to  an  easement  such  as  a  way  across  a  parcel  of  land, 
by  custom^  yet  the  public  cannot  gain  an  easement  by  prescrip- 
tion, in  so  far  as  that  implies  a  gi-ant,  as  the  public  cannot  be 
made  a  grantee.^  Highways  may  be  established  by  prescription 
by  showing  an  adverse  use  for  twenty  years.^  But  such  a  use, 
or  a  dedication  accepted  by  the  town,  or  a  laying  out,  must  be 
shown  to  make  the  town  liable  for  damages  arising  in  such  a 
way.^  But  that  the  public  uses  for  twenty  years  a  way  opened 
by  the  owner  of  land  is  not  of  itself  such  a  dedication  as  to 
make  it  a  highway  for  which  the  town  would  be  responsible,^ 

1  Melvin  v.  Wliiting,  13  Pick.  184  ;  3  Kent,  Com.  444  ;  Sargent  v.  Ballard, 
9  Pick.  251. 

2  Curtis  V.  Keesler,  14  Barb.  511  ;  1  Steph.  Com.  (4tli  ed.)  683  ;  Merwin  v. 
Wheeler,  23  Am.  L.  Reg.  601.  See  Meyer  v.  Phillips,  97  N.  Y.  485.  But  in 
these  cases  there  was  no  general  user  by  the  public.  See  also  Constable  v.  Nichol- 
son, 14  C.  B.  N.  s.  230  ;  Rivers  v.  Adams,  3  Exch.  Div.  361  ;  Chilton  v.  London, 
7  Ch.  Div.  735 ;  Goodman  v.  Saltash,  L.  R.  7  App.  Gas.  633,  635,  648,  654,  that  a 
jjrojit  a  prendre,  for  the  same  reason,  cannot  enure  by  prescription  to  a  fluctuating 
body.  But  where  the  prescription  or  adverse  user  implies  a  dedication  or  laying 
out,  it  is  otherwise.  That  a  town  may  acquire  title  by  adverse  possession,  see 
W.  Shoreham  v.  Ball,  14  R.  I.  566. 

3  Jennings  ?;.  Tisbury,  5  Gray,  73  ;  Commonwealth  v.  Old  Col.  R.  P.,  14  Gray, 
93  ;  Holt  V.  Sargent,  15  Gray,  97.  The  user  in  this  case  presumes  a  laying  out,  not 
a  grant.  Ibid.  ;  Commonwealth  v.  Coupe,  128  Mass.  63  ;  and  since  Stat.  1846, 
c.  203,  Pub.  Stat.  c.  49,  §  94,  not  a  dedication,  as  this  must  be  express.  Ibid.;  Paine 
V.  Brockton,  138  Mass.  564. 

*  Westfall  V.  Hunt,  8  Ind.  174  ;  Greene  Co.  v.  Huff,  91  Ind.  333,  340  ;  Alley 
on  Beatty's  Plan,  104  Penn.  St.  622  ;  Littler  v.  Lincoln,  106  111.  353,  367.  In 
Ruland  v.  So.  Newmarket,  59  N.  H.  291,  there  was  both  dedication  and  user  for 
twenty  years. 

8  Mayberry  v.  Standish,  56  Mc.  342.  See,  for  the  doctrine  of  dedication,  post, 
§  1905  ;  Washb.  Ease.  4,  1S5-197,  3d  ed. 


EASEMENTS.  307 

or  to  give  the  town  a  right  to  the  way  as  against  the 
owner.^ 

§  1264.  Easement  not  necessarily  exclusive.  —  It  is  no  objec- 
tion to  a  person  claiming  a  right  of  way  —  for  instance,  by  pre- 
scription as  appurtenant  to  his  particular  estate  —  that  other 
persons  have  a  right  to  use  the  same  way  by  custom  or  grant, 
since  different  persons  may  claim  the  same  way  by  different 
rights.^ 

§  1265.  Ways  are  of  several  Different  Kinds,  according  to  the 
uses  to  which  they  arc  applied.  And  as  a  way  given  for  one 
special  purpose  may  not  be  used  for  another,  and  what  the  char- 
acter of  a  way  in  any  particular  case  is  generally  depends  upon 
the  use  to  which  it  has  been  applied,  the  law  is  strict  in  re- 
quiring the  owner  of  such  an  easement  to  confine  himself 
within  the  limits  of  his  express  or  implied  grant ;  and  whether 
he  does  so  or  not  is  a  question  for  the  jury.^  If  one  who  has 
a  way  for  one  purpose  make  use  of  it  for  another,  he  thereby 
becomes  a  trespasser  as  much  as  if  he  had  no  easement  at  all 
in  the  land.*  Thus  a  footway  cannot  be  used  as  a  liorseway.^ 
Nor  does  a  carriage-way  acquired  by  use  necessarily  give  a 
party  a  right  to  use  it  as  a  driftway  for  cattle.^  And  where 
one  had  a  way  over  B's  land,  to  carry  off  the  farming  produce 
of  his   land,  he  was  lield  to  have  no  right  to  carry  lime  from 

1  Root  V.  Commonwealth,  98  Penn.  St.  170  ;  Greene  Co.  v.  Huff,  91  Ind.  333. 

2  Kent  V.  Waite,  10  Pick.  138,  142  ;  Barnstable  v.  Thacher,  3  Jlet.  239,  243, 
case  of  picking  cranberries. 

'  But  where  the  easement  is  generally  reserved,  it  is  not  limited  to  the  use  pre- 
viously made  of  the  land  to  which  it  is  appurtenant,  but  applies  to  any  that  may 
be  naturally  and  reasonablj'-  made  of  it.  Abbott  v.  Butler,  59  N.  H.  317.  See 
George  v.  Cox,  112  Mass.  382,  388.  And  a  way  for  general  purjioses  is  not  limited 
by  subsequent  continued  use  for  one  purpose.  Holt  v.  Sargent,  15  Gray,  97.  It  is 
evidence  of  a  right  for  all  purposes  to  show  use  for  all  the  purposes  for  which  from 
time  to  time  the  way  could  be  used.  Dare  v.  Heathcote,  25  L.  J.  n.  s.  Exch.  245; 
Parks  V.  Bishop,  120  Mass.  340.  A  grant  of  a  way  implies  such  light  and  air  as 
are  necessary,  Tucker  v.  Howard,  128  Mass.  361  ;  but  only  what  are  strictly  so, 
Gerrish  v.  Shattuck,  132  Mass.  235.-  But  where  light  and  air  are  expressly  or  by 
fair  implication  stipulated  for,  the  full  width  vertically  is  required.  Salisbury  v. 
Andrews,  128  Mass.  336;  Atty.-Gen.  v.  Williams,  140  Mass.  329. 

*  Cowling  V.  Higginson,  4  M.  &  W.  245  ;  Tud.  Lead.  Gas.  123  ;  Ballard  v. 
Dyson,  1  Taunt.  279  ;  Higham  v.  Rabett,  5  Bing.  N.  C.  622. 

s  Kirkham  v.  Shar]i,  1  Whart.  323. 

6  Ballard  v.  Dysson,  1  Taunt.  279  ;  Allan  v.  Gorame,  11  Ad.  &  E.  759. 


308  INCORPOREAL    HEREDITAMENTS. 

liis  land  over  the  same  way,  though  burned  upon  his  land.^ 
So  where,  to  an  action  of  trespass  for  carrying  water  and 
goods  across  a  party's  land,  the  defendant  relied  upon  a  right 
of  way,  and  the  jury  found  that  he  had  a  way  for  carrying 
water,  and  not  for  carrying  goods,  the  defendant  was  held 
liable  in  the  action.^  So  where  a  lessor  reserved  a  right  of 
way  over  the  land  leased  to  and  from  a  stable  which  belonged 
to  him,  "  on  foot,  and  for  horses,  oxen,  cattle,  and  sheep," 
and  he  undertook  to  carry  manure  from  the  stable  across  the 
land  in  a  wheelbarrow,  and  the  tenant  obstructed  him,  for 
which  he  brought  an  action,  it  was  held  that  he  could  not  re- 
cover, since  the  way  reserved  did  not  include  a  right  to  carry 
away  manure  in  a  wheelbarrow  ;  and  though  while  so  doing  he 
was  passing  on  foot  within  the  terms  of  the  reservation,  yet  as 
in  doing  so  he  was  using  the  wheelbarrow,  which  he  had  no 
right  to  do,  the  tenant  was  justified  in  obstructing  his  passage.^ 
If  one  grant  a  free  and  unobstructed  way,  it  is  for  the  jury  to 
determine  whether  maintaining  a  gate  across  it  by  the  owner 
of  the  land  is  an  unreasonable  obstruction.  It  is  not  of  itself 
such,  and  the  acts  of  the  parties  immediately  after  the  grant 
may  be  taken  as  an  exposition  of  it.^ 

§1266.  Use  of  Way  strictly  limited.  — This  strictness  is 
especially  adopted  with  respect  to  the  extent  to  which  a  party 
may  use  a  way,  where  he  uses  no  other  mode  of  passing  over 
it  than  he  had  a  right  to.  Cases  of  this  kind  have  chiefly 
arisen  where,  under  a  right  to  pass  over  another's  land  to  ac- 
commodate a  particular  liouse,  or  stable,  or  lot  of  land,  a  man 
has  undertaken  to  use  it  in  connection  with,  and  for  the  accom- 
modation of,  other  premises.  Thus  where  A,  as  the  owner  of 
a  two-acre  mowing-lot,  had  a  right  of  way  across  B's  land,  ap- 
purtenant to  said  lot,  for  the  purpose  of  bringing  away  the  hay 
growing  thereon,  and  purchased  another  lot  adjoining  the  first, 
the  hay  from  which,  mixed  with  that  on  his  two-acre  lot,  he 
carried  across  B's  land,  it  was  held  that  he  was  thereby  a  tres- 
passer, since  the  use  must  be  confined  to  the  two-acres.^     So 

1  Jackson  v.  Stacey,  Holt,  N.  P.  455  ;  French  v.  Marstin,  24  N.  H.  440. 

2  Knight  V.  Moore,  3  Bing.  N.  C.  3  ;  Highani  v.  Rabett,  5  Ring.  N.  C.  622. 
8  Brunton  v.  Hall,  1  Q.  B.  792;  Washb.  Ease.  185,  186. 

*  Connery  v.  Brooke,  73  Penn.  St.  80,  84. 

6  Davenport  v.  Lamson,  21  Pick.  72  ;  Howell  v.  King,  1  Mod.  190.     But  see 


EASEMENTS.  309 

where  one  liad  a  right  to  drive  his  cattle  across  the  land  of 
another  to  a  lot  to  depasture,  and  having  done  so  drove  them 
from  the  first  lot  into  another,  he  thereby  became  a  trespasser.^ 

§1267.  Highway  Crossing.  —  But  a  right  of  way  between 
two  termini  will  not  be  inconsistent  with  the  exercise  of  the 
right  over  a  part  of  the  same  if  it  crosses  a  highway,  and  the 
owner  of  the  way  has  been  accustomed,  as  occasion  required, 
to  pass  between  one  of  the  termini  and  the  highway.  He  may, 
in  such  case,  pass  over  the  servient  estate  toward  the  other  ter- 
minus as  far  as  the  highway,  and  then,  instead  of  going  on  to 
that  terminus,  may  follow  the  highway  in  any  direction  and  to 
any  distance  he  may  choose.^ 

§  1268.  Mode  of  Use  restricted  to  Terms  of  Grant.  —  And 
while  the  court  will,  in  case  of  an  express  grant  of  a  way,  or 
other  easement,  give  to  the  grantee  all  that  is  necessary 
to  enjoy  what  is  granted,  they  will  confine  the  limits  of  the 
grant  to  the  terms  adopted  by  the  parties.^  Thus  where  A 
granted  to  B  a  right  of  way  "  over  and  along  "  a  certain  strip  of 
land,  with  power  to  make  causeways,  to  use  carts,  wagons,  etc., 
"  to  carry  coals,"  it  was  held,  that,  while  B  might  lay  down  a 
new  and  different  form  of  way  which  had  been  invented  since 
the  making  of  the  deed,  and  which  was  better  fitted  than  any 
other  for  the  purpose,  he  could  not  make  transverse  tracks, 
though  convenient  for  his  use,  but  must  limit  himself  to  one 
direct  track. "* 

§  1269.  Burden  of  Servient  Estate  must  not  be  increased.  — 
But  the  owner  of  the  dominant  estate  must  not  change  the 
use  of  his  easement,  so  as  to  produce  inconvenience  to  the 
servient  estate,  or  increase  the  burden  thereon  beyond  that 
which  would  be  necessarily  created  by  carrying  out  the  grant.^ 

AVilliams  v.  James,  L.  R.  2  C.  P.  577,  580 ;  Sloan  v.  HoUiday,  30  L.  T.  x.  s.  757 ; 
and  a7ite,  §  1265. 

1  1  Rolle,  Abr.  391,  pi.  3  ;  Woolr.  Ways,  34  ;  Colohester  y.  Roberts,  4  M.  &  W. 
769;  Lawton  v.  Ward,  1  Ld.  Rayni.  75  ;  French  v.  Marstin,  32  N.  H.  316. 

2  Colchester  v.  Roberts,  4  M.  &  W.  769. 
8  Read  v.  Erie  E.  R.,  97  K  Y.  341. 

*  Senhouse  v.  Christian,  1  T.  E.  560;  Russell  v.  Jackson,  2  Pick.  574,  577; 
Conistock  V.  Van  Densen,  5  Pick.  163  ;  that  a  grant  of  a  way  across  a  parcel  of  land 
will  not  justify  entering  upon  and  going  partly  across,  and  coming  out  at  another 
point  on  the  same  side  at  which  he  entered. 

6  Garritt  v.  Sharp,  3  Ad.  &  E.  325  ;  Gerrard  v.  Cooke,  5  B.  &  P.  109,  115. 


310  INCORPOREAL    HEREDITAMENTS. 

Nor  can  the  grantee  of  a  right  of  way  change  its  direction 
from  that  described  in  the  grant.^  Nor  would  one  having  a 
right  of  way  to  a  lot  over  a  servient  parcel  have  a  right  to 
pass  along  the  boundary -line  of  the  servient  parcel  after  reach- 
ing the  lot  to  which  the  way  led.^  Thus  where  there  was  a 
grant  of  a  house,  stable,  and  piece  of  land,  with  a  right  of  way 
belonging  to  the  same,  and  the  way  then  used  led  to  the  house 
and  stable,  and  then  to  the  field  around  a  certain  point  to  a 
certain  gate,  and  the  grantee  took  down  the  house  and  stable 
and  built  a  wall  across  the  former  way,  and,  instead  of  it, 
opened  a  new  gate  into  the  field  at  a  different  point,  it  was 
held  to  be  an  act  of  trespass  to  pass  over  this  new  way  into 
the  field  ;  for  though  a  right  of  way  was  granted,  it  was 
limited  to  the  one  then  existing.^  But  where  a  grantor  of  a 
messuage  reserved  "  a  right  to  pass  over  the  yard,"  he  had  no 
right  of  action  against  his  grantee  for  stopping  the  way  then 
in  use,  the  grantee  having  opened  a  new  and  convenient  one, 
because  the  reservation  was  undefined  in  its  terms.  Nor  did 
it  make  any  difference  in  this  respect  that  the  grantor  had 
made  use  of  the  way  existing  when  he  made  the  reservation 
for  more  than  twenty  years  after  his  grant,  since  such  use 
was  not  adverse  by  reason  of  its  being  exercised  by  the 
authority  reserved  in  the  deed,  and  the  reservation  might 
be  as  well  answered  by  the  one  way  as  the  other.^  And  if 
in  such  case  the  owner  of  the  granted  land  were  to  stop  the 
way  in  use,  the  grantor,  under  his  reservation,  might  pass 
over  any  other  part  of  the  estate  least  prejudicial  to  the 
owner  thereof.^ 

§  1270.  Use  restricted  to  Original  Purpose.  —  If  one  who  has 
an  easement  for  one  purpose,  such  as  a  footway,  for  instance, 
use  it  for  another,  as  for  carriages,  it  will  not  give  a  right  to 
the  owner  of  the  servient  estate  to  stop  the  use  altogether,  so 

1  Xortham  v.  Hurley,  1  E.  &  B.  665;  Gore  v.  Fitch,  54  Me.  41. 

2  Brossart  v.  Corlet,  27  Iowa,  288. 

**  Henning  v.  Burnet,  8  Exch.  187. 

*  Atkins  V.  Bordman,  2  Met.  457  ;  Farnura  v.  Piatt,  8  Pick.  339. 

5  Ibid.  ;  Haley  v.  Colcord,  59  N.  H.  7  ;  Kent  v.  Judkins,  53  Me.  160  ;  Rockl.  W. 
Co.  V.  Tillson,  75  Me.  170,  where  aqueduct  pipes  were  allowed  to  be  relaid  in  a  new 
place,  to  avoid  an  obstruction. 


EASEMENTS.  311 

as  to  deprive  the  former  of  his  footway,  for  the  rightful  use  in 
such  case  may  be  separated  from  that  which  is  wrougful.^  But 
if  the  owner  of  tlie  dominant  estate  extend  his  easement  in 
another's  land  beyond  wliat  he  has  a  right  to  enjoy,  and  does 
it  in  such  a  way  that  tlie  owner  of  the  servient  estate  cannot 
stop  the  excessive  use  without  stopping  the  use  altogether,  the 
latter  may  lawfully  do  so.^  But  whether  a  change  in  the  mode 
and  purposes  for  which  a  way  is  granted  or  acquired  shall 
affect  the  right  to  the  same,  depends  upon  whether  the  change 
is  one  of  substance,  or  is  in  the  mere  quality  of  the  enjoyment 
not  injuriously  affecting  the  servient  estate.  Thus  if  the  right 
of  way  granted  be  for  the  purpose  of  a  way  to  a  cottage,  and 
the  cottage  is  turned  into  a  tanyard,  tlie  right  of  way  would  be 
lost.  But  if  there  be  a  grant  in  general  terms  of  all  ways  to 
a  cottage,  the  changing  it  in  the  manner  supposed  would  not 
destroy  the  right  of  way,  the  cottage  being  the  termiims^  in 
such  case,  of  the  way,  and  not  the  particular  object  with  which 
it  must  be  used.^ 

§  1271.  Of  Obstructions  to  the  Way.  —  Where  a  piece  of  land 
was  granted  with  a  right  of  way,  for  passing  and  repassing 
over  twenty  feet,  between  two  definite  lines  on  the  grantor's 
land,  it  was  held,  that  this  implied  a  convenient  way,  having 
reference  to  the  use  and  enjoyment  of  the  granted  lands,  and 
not  a  free  and  unobstructed  use  of  the  whole  twenty  feet  in 
width,  unless  required  for  the  granted  estate  ;  and  that  the 
placing  of  obstructions  in  this  space  by  the  owner  of  the  land 
gave  no  right  of  action  to  the  grantee,  so  long  as  there  re- 
mained for  him  a  convenient  way."*  As  a  general  proposition, 
the  owner  of  a  servient  estate,  over  wliich  there  is  a  private 
way,  may  maintain  gates  or  bars  across  the  way,  provided  it 
do  not  materially  interfere  with  the  use  of  it,  or  the  way,  by 

1  Gale  &  What.  Ease.  362  ;  Tud.  Lea.l.  Cas.  132. 

2  Elliott  V.  Rhett,  6  Rich.  455,  421;  Gale  &  What.  Ease.  374  ;  Renshaw  v.  Bean, 
18  Q.  B.  112,  130,  132. 

8  Allan  V.  Gomnie,  11  Ad.  &  E.  759  ;  with  limitations  by  Parke,  B.,  in  Kenning 
V.  Bnrnet,  8  Exch.  187  ;  ante,  §  1265. 

*  Johnson  v.  Kinnicntt.  2  Cush.  153,  156.  But  the  grant  or  reservation  of  a 
defined  width  entitles  to  the  whole  width  unobstructed.  Tucker  v.  Howard,  122 
Mass.  529  ;  128  id.  361  ;  Nash  v.  N.  E.  Ins.  Co.,  127  Mass.  91  ;  Bissell  v.  Grant, 
35  Conn.  288,  295. 


312  INCORPOREAL    HEREDITAMENTS. 

the  terms  of  the  grant,  is  to  be  kept  opeii.^  But  the  one  who 
has  tlie  right  of  way  may  not  use  it  as  a  place  of  deposit  of 
articles  along  its  sides. ^  Nor  would  the  landowner  liave  a 
right  to  place  obstructions  in  a  way  which  his  grantee  had 
occasion  to  use,  if,  in  his  grant,  it  was  called  a  street,  and  had 
j^  been  opened  as  such  to  the  public.^  If  the  width  and  height  of 
the  way  granted  or  reserved  be  not  defined  in  the  deed,  or 
fixed  by  practical  location,*  it  sliall  be  such  as  is  reasonably 
necessary  and  convenient  for  the  purposes  for  which  it  w^as 
granted.  And  this  w^ill  be  partly  a  question  of  law,  and 
partly  of  fact.^  And  though  a  right  of  w^ay  cannot  be 
granted  by  parol,  yet,  if  there  is  in  a  deed  of  land  a  grant 
or  reservation  of  existing  ways  and  easements  actually  used 
and  enjoyed  therewith,  parol  evidence  is  competent  to  show, 
as  an  existing  fact,  that  a  particular  way  claimed  has  been 
thus  used.^ 

§  1272.  Who  bound  to  repair  a  "Way.  —  As  a  general  proposi- 
tion, the  dominant  estate  is  bound  to  repair  the  way  it  enjoys 
over  the  servient  estate,  though  tlie  owner  of  the  latter  may, 
by  grant,  or  reservation,  or  by  prescription,  be  bound  to  make 
the  necessary  repairs  in  order  to  its  enjoyment.'''  The  conse- 
quence is,  that  the  owner  of  tlie  dominant  estate,  while  he  may 
go  on  to  do  all  that  is  necessary  to  repair  the  way  to  render  it 
safe  and  reasonably  convenient,^  may  not,  because  the  way  is 
out  of  repair,  pass  over  other  land  of  the  servient  tenement, 

1  Hnson  r.  Young,  4  Lans.  63;  Houpes  v.  Alderson,  22  Iowa,  160,  163  ;  Bean 
V.  Coleman,  44  X.  H.  539  ;  Conuery  v.  Brooke,  73  Penn.  St.  80  ;  Washb.  Ease.  (3(1 
ed.)  264,  265. 

2  Kaler  v.  Beanian,  49  Me.  207. 

3  Tudor  Ice  Co.    v.  Caniiingham,  8   Allen,  139.     IS^or  can  the  grantor   or  any 
^  grantee  change  the  grade,  unless  all  the  grantees  assent.     Killion  v.  Kelley,  120 

Mass.  47. 

*  George  v.  Cox,  114  Mass.  382. 

6  Atkins  V.  Bordman,  2  Met.  457,  467.  In  Johnson  v.  Kinnicutt,  2  Cush.  153, 
George  v.  Cox,  114  Mass.  382,  it  was  left  to  the  jury. 

6  White  V.  Crawford,  10  Mass.  183  ;  Story  v.  Odin,  12  Mass.  157 ;  Salisbury  v. 
Andrews,  19  Pick.  250;  Atkius  v.  Bordman,  2  Met.  457;  Morris  v.  Edgington, 
3  Taunt.  24. 

^  Doane  v.  Badger,  12  Mass.  65  ;  Jones  v.  Percival,  5  Pick.  485  ;  Gerrard  v. 
Cooke,  5  B.  &  P.  109,  115  ;  Pomfret  v.  Ricroft,  1  Saund.  323,  n.  3 ;  Eider  v.  Smith, 
3  T.  R.  766;  3  Burge,  Col.  &  For.  Law,  443. 

8  Gerrard  v.  Cooke,  su^ra.  115  ;  1  Saund.  322,  n.  3,  323,  n.  G. 


EASEMENTS.  813 

unless  the  owner  of  the  latter  estate  is  bound  to  repair,  or 
unless  the  way  is  obstructed  by  his  wilful  act ;  ^  in  which  case, 
he  who  has  the  dominant  estate  may,  it  would  seem,  while  the 
way  is  so  out  of  repair,  go  upon  the  adjacent  land  so  far  as 
it  is  necessary.2  J3,j^  \^q  ^[\i  ^q^^  \^j  reason  of  owning  a 
prescriptive  riglit  of  way  over  a  servient  estate,  have  a  right 
to  dig  ditches  by  the  side  of  the  way  to  make  it  more 
convenient,  unless  he  shall  have  acquired  that  riglit  also  by 
prescription.^ 

§  1273.  Of  Loss  of  Way  by  Non-user.  —  There  are  various 
modes  besides  the  unity  of  the  two  estates,  which  will  be  con- 
sidered hereafter,  by  which  a  right  of  way  may  be  lost,  aban- 
doned, or  extinguished.  One  of  these  is  by  non-user,  under 
such  circumstances  as  to  give  to  the  servient  estate,  as  it  were, 
the  same  right  to  be  freed  of  the  easement  as  the  user  origi- 
nally imposed  the  way  upon  it  in  favor  of  the  dominant  estate. 
In  the  first  place,  there  is  a  marked  difference  between  ease- 
ments acquired  by  express  grant  and  those  established  by  mere 
user.  Mere  non-user  in  the  former  case,  even  for  more  than 
twenty  years,  will  not  destroy  the  right,  if  the  owner  of  the 
servient  estate  does  no  act  which  prevents  the  use.*  And  if 
acquired  by  prescription,  the  non-user  for  twenty  years  may  be 
explained  so  as  to  show  that  the  way  was  not  abandoned,  as, 
where  the  party  who  had  the  way  had  acquired  and  used  a 
more  convenient  one,  this  was  held  to  afford  no  evidence  that 
he  intended  to  abandon  the  first  whenever  he  might  have 
occasion  to  use  it  again.^     A  mere  non-user  for  any  time  less 

1  Rockl.  W.  Co.!;.  Tillson,  75  Me.  170;  ante,  §  1269. 

2  Taylor  v.  Whitehead,  Dougl.  745  ;  Bullard  v.  Harrison,  4  M.  &  S.  387.  See 
Hamilton  v.  White,  5  N.  Y.  9  ;  Washb.  Ease.  196. 

8  Capers  v.  McKee,  1  Strobh.  164. 

*  Jewett  V.  Jewett,  16  Barb.  150  ;  Elliott  v.  Rhett,  5  Rich.  405,  419  ;  White  v. 
Crawford,  10  Mass.  183  ;  Smiles  v.  Hastings,  24  Barb.  44  ;  Arnold  v.  Stevens,  24 
Pick.  106  ;  Bannon  v.  Angier,  2  Allen,  128  ;  Jennison  v.  Walker,  11  Gray,  423,  426  ; 
Washb.  Ease.  551  ;  Hall  v.  McCaughey,  51  Penn.  St.  43  ;  Cook  v.  Mayor,  L.R.  6 
Eq.  177  ;  Riehle  y.Henlings,  38  N.  J.  Eq.  20  ;  Henlings  v.  Riehle,  id.  652  ;  Lathrop 
V.  Eisner,  93  Mich.  599  ;  s.  c.  53  N.  W.  Rep.  791  ;  Dill  v.  School  Board,  47  N.  J. 
Eq.  421 ;  s.  c.  20  Atl.  Rep.  739  ;  s.  c.  10  L.  R.  A.  276  ;  Welsh  v.  Taylor,  134 
N.  Y.  450 ;  s.  c.  31  N.  E.  Rep.  896  ;  Ford  v.  Harris,  95  Ga.  97  ;  s.  c.  22  S.  E.  Rep. 
144. 

8  Ward  V.  Ward,  7  Exch.  838  ;  Jam.  PI.  Aq.  Co.  v.  Chandler,  121  Mass.  3. 


314  INCORPOREAL   HEREDITAMENTS. 

than  twenty  years  docs  not  amount  to  an  abandonment  of  the 
riglit,  however  the  same  may  have  been  acquired. ^ 

§  1274.  Loss  of  Prescriptive  Right  by  Nou-user.  — If,  however, 
there  has  been  a  cessation  for -twenty  years,  unexplained,  to 
use  a  way  originally  acquired  by  use,  it  is  regarded  as  a  pre- 
sumption, either  that  the  former  presumptive  right  has  been 
extinguished  in  favor  of  some  other  adverse  right,  or,  where 
no  such  adverse  right  appears,  that  the  former  has  been  sur- 
rendered, or  that  it  never  existed.^  The  doctrine  maintained 
by  the  New  York  courts  is,  that  an  easement  gained  by  pre- 
scription may  be  lost  by  non-user,  but  it  is  otherwise  if  gained 
by  grant.3 

§  1275.  Of  Parol  Surrender  of  "Way.  —  A  right  of  way  cannot 
be  effectually  abandoned  or  surrendered,  any  more  than  it  can 
be  created,  by  a  mere  parol  agreement  between  the  owners  of 
the  several  estates.^  But  an  executed  oral  agreement  to  dis- 
continue the  use  of  an  old  way,  and  to  substitute  for  it  a  new 
and  different  one,  has  been  held  to  be  competent  evidence  of 
the  surrender  of  the  right  to  the  old  way.^  And  there  are 
many  acts  of  abandonment  short  of  a  non-user  for  twenty 
years,  which,  if  done  by  the  owner  of  the  dominant  tenement, 

1  Williams  v.  Nelson,  23  Pick.  141;  White  v.  Crawford,  supra;  Emerson  y. 
Wiley,  10  Pick.  310;  Corning  u.  GouU,  16  Wend.  531;  Parkins  v.  Dunham, 
3  Strobh.  224  ;  Cuthbert  v.  Lawton,  3  M'Cord,  194  ;  Carlisle  v.  Cooper,  19  N.  J. 
Eq.  256,  261. 

2  Corning  v.  Gould,  sicpra  ;  Wright  v.  Freeman,  5  Harr.  &  J.  467,  477.  See  Par- 
kins V.  Dunham,  supra;  Hazard  v.  Robinson,  3  Mason,  272  ;  Hillary  v.  Waller,  12 
Ves.  239,  265;  3  Kent,  Com.  448.  In  2  Pothier,  Obligations,  136,  is  the  case  of 
Prescott  V.  Phillips,  with  the  comments  of  the  editor  (Mr.  Evans),  implying  an 
opinion  that  sometliing  more  than  mere  non-user  of  an  easement  is  required  to 
operate  as  an  abandonment  ;  and  a  note  to  3  Kent,  Com.  448,  intimates  the  same 
opinion.  But  does  it  not  depend  upon  the  question,  whether  the  original  right 
was  acquired  by  express  grant  or  mere  user,  the  user,  in  the  latter  case,  being  origi- 
nally the  evidence  of  the  claim  of  right  to  which  the  other  party  yielded,  and  the 
non-user,  in  like  manner,  being  eviilence  that  that  right  has  been  in  turn  yielded  ? 
It  seems,  however,  that  the  non-user  may  be  explained  so  as  to  rebut  the  presump- 
tion of  the  right  having  been  yielded.  Ward  v.  Ward,  7  Exch.  838  ;  Doe  v.  Hil- 
der,  2  B.  &  A.  782,  791. 

8  Pope  V.  O'Hara,  48  N.  Y.  446,  452.  See  also  Hayford  v.  Spokcsfield,  100  Mass. 
491,  494. 

*  Dyer  v.  Sanford,  9  Met.  395 ;  Pue  v.  Pue,  4  Md.  Ch.  Dec.  386. 

6  Pope  V.  Devereux,  5  Gra}',  409.  See  Wynkoop  v.  Burger,  12  Johns.  222; 
Hamilton  v.  White,  4  Barb.  60 ;  Gage  v.  Pitts,  8  Allen,  527. 


EASEMENTS.  315 

and  acquiesced  in  by  that  of  the  servient,  may  amount  to  a 
surrender  of  such  an  casement,^  provided  such  act  of  abandon- 
ment have  been  done  with  such  intention.^  * 

*NoTE.  —  If  the  case  of  Pope  r.  Devereux,  above  cited,  is  to  be  taken  aa  determining 
only  a  question  of  the  competency  of  evidence  of  a  surrender  of  an  easement,  it  may 
not  be  open  to  criticism.  But  if,  as  the  reader  might  be  led  to  infer,  it' maintains 
the  doctrine  that  an  existing  easement  may  be  exchanged  by  parol  for  another  ease- 
ment of  the  same  kind,  and  the  owner  thereby  acquire  the  same  proi)erty  in  the 
new  one  as  he  had  in  the  former,  and  a  title  to  the  same  equally  valid,  it  is  apjire- 
hended  that  it  cannot  be  sustained  either  upon  principle  or  authority.  Jackson  v. 
Dysling,  2  Caines'  Eep.  201  ;  Arnold  v.  H.  K.  R.  Road,  55  N.  Y.  662. 

In  the  case  cited,  the  question,  whether  the  owner  of  the  easement  intended  to 
give  it  up  without  receiving  another  equally  valid,  does  not  seem  to  have  been  sub- 
mitted to  the  jury  ;  and,  to  sustain  the  assumption  that  there  was  a  surrender,  it 
must  have  been  presumed  that  the  owner  of  the  right  of  way  was  willing  and  in- 
tended to  give  it  up  and  extinguish  it  as  it  then  existed,  and  to  accept  in  its  stead 
a  mere  voidable  promise  to  continue  a  revocable  license  to  use  another  way,  since 
no  new  easement  could  be  acquired  by  a  parol  license  to  use  a  new  way,  from  the 
fact  that  such  a  license,  though  executed,  would  be  a  revocable  one.     Ante,  §  844. 

The  cases  cited  by  the  court  to  sustain  the  doctrine  laid  down  in  the  case  were 
Moore  v.  Rawson,  3  B.  &  C.  332  ;  Liggins  v.  Inge,  7  Bing.  682  ;  and  Dyer  v.  San- 
ford,  9  Met.  395  ;  which  do  not  strike  a  casual  reader  as  analogous  to  the  case  un- 
der consideration.  In  the  first  of  these,  one  who  had  enjoyed  the  easement  of  light 
for  a  building  had  torn  it  down,  and  erected  one  with  a  blank  wall,  which  had 
stood  for  seventeen  years  ;  in  the  second,  the  owner  of  an  easement  of  flowing  back 
water  upon  the  defendant's  land  gave  him  permission  to  lower  the  bank  of  the 
stream  in  his  own  land,  which  reduced  the  extent  of  the  flowing,  and  this  had  been 
done  five  years  before  any  complaint ;  and  in  the  last,  the  easement  was  one  of 
light,  and  the  question  was,  whether  the  act  which  operated  to  obstruct  the  en-, 
joyment  of  the  light  was  a  license  or  an  abandonment  of  the  easement.  Shaw, 
C.  J.,  says  :  "It  may  well  be  maintained  on  the  authorities,  that  the  owner  of  a 
dominant  tenement  may  make  such  changes  in  the  use  and  condition  of  his  own 
estate  as  in  fact  to  renounce  the  easement  itself."     p.  401. 

In  Lovell  u.  Smith,  3  C.  B.  N.  s.  120,  the  head-note  is:  "A  parol  agreement  for  the 
substitution  of  a  new  way  for  an  old  prescriptive  way,  and  a  consequent  discontinu- 
ance to  use  the  old  way,  affords  no  evidence  of  an  abandonment  thereof."  Willes, 
J.,  says,  after  reciting  the  facts  substantially  as  stated  in  the  head-note  above  :  "  It 
is  quite  obvious  that  that  was  done  without  any  intention  on  the  part  of  the  plain- 
tiff to  abandon  his  original  right." 

The  case  of  Lovell  v.  Smith  is  cited  with  approbation  in  Hayfnrd  v.  SjMkesfield, 
100  Mass.  491,  495  ;  and  in  Erb  v.  Brown,  69  Penn.  St.  216,  218,  the  court  say  : 
"The  servitude  imposed  on  the  plaintili's  estate  was  created  by  deed,  and,  under 

1  Corning  v.  Gould,  16  Wend.  531  ;  3  Kent,  Com.  448  ;  Dyer  v.  Sanford,  9  Met. 
395,  402;  Canny  v.  Andrews,  123  Mass.  155,  where  Pope  v.  Devereux,  supra, 
is  cited. 

2  Ward  V.  Ward,  7  Exch.  838  ;  Regina  v.  Chorley,  12  Q.  B.  515  ;  Hale  v.  Old- 
royd,  14  M.  &  W.  789  ;  Williams  v.  Nelson,  23  Pick.  141,  147;  Dyer  v.  Depui, 
5  \vhart.  584,  597  ;  Mowry  v.  Sheldon,  2  R.  I.  369,  378. 


316  INCORPOREAL   HEREDITAMENTS. 

§  1276.  "What  Acts  operate  as  an  Abandonment.  —  The  acts, 
as  already  intimated,  which  would  be  construed  to  operate  as  a 

the  statute  of  frauds,  could  not  be  assigned,  granted,  or  surrendered,  unless  by  deed 
or  note,  or  by  operation  of  law.  It  could  not  be  extinguished  or  renounced  by  a 
parol  agreement  between  the  owners  of  the  dominant  and  servient  tenements." 
But  in  Massachusetts  it  is  held  that  if  the  parties  clearly  intended  to  substitute  the 
new  way  for  the  old  one  and  to  abandon  the  old  way,  the  non-user  will  amount  to 
an  abandonment.  Jamaica  Pond  Aqued.  Corp.  i'.  Chandler,  121  Mass.  3  ;  Pope  v. 
Devereux,  5  Gray,  409. 

In  Reigiiolds  v.  Edwards,  "Willes,  282,  the  owner  of  land  over  which  defendant 
had  a  right  of  way  closed  the  way  and  opened  another,  which  the  defendant  used 
for  many  years,  when,  the  owner  having  shut  up  the  latter,  the  defendant  under- 
took to  pass  over  it,  and  broke  down  the  enclosure,  for  which  the  owner  brought 
trespass.  The  court  held  the  defendant  liable.  "  This  new  way  was  only  a  way 
by  sufferance,  and  either  party  might  determine  it  at  his  pleasure  ;  and  the  ])lain- 
tiff,  in  this  case,  has  determined  his  will  by  fastening  the  gate,  and  so  the  defendant 
ought  to  have  had  recourse  to  his  old  way."  P.  287.  See  also  Payne  v.  Shedden, 
1  Moo.  &  R.  382 ;  Carr  v.  Foster,  3  Q.  B.  581. 

In  Hamilton  v.  White,  5  N.  Y.  9,  the  court  refer  to  the  above  case  from  Willes 
"as  founded  on  good  sense  and  sound  morals."  But  they  make  a  distinction  be- 
tween the  cases,  as  in  that  before  them  the  original  way  had  been  closed  by  the 
plaintiff  for  ten  years,  but  the  new  one  had  not  been  closed,  and  the  defendant  when 
he  used  it,  though  forbidden,  had  no  other  way  except  by  going  and  breaking  down 
the  enclosures  across  the  old  way  ;  and  it  being  admitted  that  the  defendant  had  a 
right  across  the  plaintiff's  land,  that  the  plaintiff  hindered  him  from  crossing  in 
the  old  way,  and  that  the  new  one  was  still  open,  the  jilaintilf  could  not,  under 
the  circumstances  of  the  case,  prohibit  his  using  the  latter  without  opening  the 
former.  "  If  it  be  admitted  that  the  right  to  the  new  track,  not  being  created  by 
grant,  nor  acquired  by  user  of  twenty  years,  was  held  at  the  will  of  the  plaintiff, 
he  ought  not  to  be  permitted  to  put  an  end  to  that  will  without  opening  the  old 
route,  or  consenting  that  the  defendants  might  use  it."  *'  If  he  chose  to  put  an  end 
to  the  defendants'  right  of  passing  by  the  new  way,  he  should  have  opened  the  way 
to  which  the  defendants  had  a  lawful  title  ; "  clearly  assuming,  it  would  seem,  that 
the  original  way  was  neither  wholly  abandoned  nor  extinguished  by  the  substitu- 
tion, by  an  executed  parol  agreement,  of  another  which  had  not  been  enjoyed  for 
twenty  years.  See  Smith  v.  Lee,  14  Gray,  473.  The  court,  however,  in  Smith  v. 
Barnes,  101  Mass.  275,  seem  still  to  recognize  Pope  v.  Devereux,  and  seek  to  sus- 
tain it  by  the  case  of  Larned  v.  Larned,  11  ilet.  421,  where  the  way  which  had 
been  used  by  the  public  across  two  or  more  parcels  and  the  course  of  the  way  had 
been  changed  by  consent  of  the  owner  of  the  servient  estate,  and  of  the  adjacent 
owner  within  the  servient  estate.  The  head-note  of  the  case  is  :  "This  evidence 
was  fully  competent  to  prove  a  dedication  of  the  new  way  by  the  plaintiff's  grantor, 
and  that  it  was  assented  to  by  the  plaintiff  and  defendant."  Whereas  it  is  a  fa- 
miliar doctrine  that  a  dedication  may  be  made  by  verbal  declaration  accompanied 
by  proper  acts.  AVashb.  Ease.  (4th  ed. )  212  ;  while  a  way  can  only  be  granted  or 
created  between  individuals  by  deed  or  prescription,  which  is  evidence  of  a  grant 
by  deed.  Ibid.  32.  Besides,  accepting  for  one  interest  in  real  estate  a  collateral 
and  different  interest  therein  in  satisfaction  thereof,  where  no  release  or  actual 
grant  is  made,  is  not  binding  at  common  law.     Ante,  §  493. 


EASEMENTS.  317 

surrender  or  abandonment  of  an  easement  must  be  such  as,  in 
effect,  destroy  either  the  object  for  which  it  was  created,  or 
the  means  of  the  enjoyment  of  it ;  and  these  acts  must  either 
be  done  by  the  owner  of  the  dominant  tenement  himself,  or 
with  his  consent  by  the  owner  of  the  servient  estate.  Thus, 
where  one,  having  a  right  of  way  by  grant  from  a  parcel  of 
hind,  made  an  impassable  fence  across  the  same,  and  continued 
it  for  seven  years,  he  did  not  thereby  extinguish  the  easement.^ 
In  the  cases  of  Moore  v.  Rawson  and  Liggins  v.  Inge,^  referred 
to  in  the  last  note,  the  act  done  had  the  effect  of  destroying 
the  easement  altogether.  In  Corning  v.  Gould,  a  narrow 
passage-way  between  two  adjacent  estates  for  the  accommoda- 
tion of  the  dwelling-houses  thereon  had  been  encroached  on,  on 
one  side,  by  a  building,  and  by  a  fence  made  along  the  middle 
of  it  by  the  owner  of  one  of  these  estates,  and  the  latter  estate 
had  been  conveyed  while  it  was  thus  obstructed.  This  grantee 
objected  to  an  exclusive  occupancy  by  the  owner  of  the  other 
tenement  of  the  part  of  the  passage-way  upon  his  side  of  the 
fence ;  but  it  was  held,  these  obstructions  operated  as  an  ex- 
tinguishment of  the  way,  they  having  been  made  by  one  owner 
and  assented  to  by  the  other.^  Nor  is  it  necessary  that  this 
obstruction,  to  have  such  an  effect,  should  have  existed  twenty 
years.  The  test  ^s  found  in  the  intention  with  which  the  acts 
were  done.*  In  the  case  of  Rcgina  v.  Chorley,^  where  the  de- 
fendant had  a  right  of  way  to  his  malt-house  over  a  plaintiff's 
land,  the  court  say,  that  if  the  defendant  had  removed  the 
malt-house,  and  walled  up  the  entrance,  and  then,  for  any  con- 
siderable period  of  time,  acquiesced  in  the  unrestrained  use  by 
the  public,  they  conceive  the  easement  would  have  been  clearly 
gone.  "  It  is  not  so  much  the  duration  of  the  cesser  as  the 
nature  of  the  act  done  by  the  grantee  of  the  easement,  or  of 

1  Hay  ford  v.  Spokesfield,  100  Mass.  491. 

2  Moore  v.  Rawson,  3  B.  &  C.  332  ;  Liggins  v.  Inge,  7  Bing.  682. 

3  Corning  v.  Gould,  16  Wend.  531. 

*  White's  Bank  v.  Nichols,  64  N.  Y.  65  ;  Vogler  v.  Geiss,  51  Md.  407;  Steere  v. 
Tiffany,  13  R.  I.  568. 

5  Regina  v.  Chorley,  12  Q.  B.  515.  See  also  Manning  v.  Smith,  6  Conn.  289. 
In  Grain  v.  Fox,  16  Barb.  184,  A,  having  a  right  of  way  across  plaintiff's  land  to  a 
house  which  he  had  removed  twelve  years  before,  had  closed  the  way  by  a  board 
fence  at  each  end,  and  undertook  to  cultivate  the  soil.  This  was  held  to  be  an 
abandonment  of  the  way. 


318  INCORPOREAL    HEREDITAMENTS, 

the  adverse  act  acquiesced  in  by  liim,  and  the  intention  in  him 
which  either  the  one  or  the  other  indicates,  which  are  material 
for  the  consideration  of  tlie  jury."  The  abandonment  in  such 
cases  is  a  question  for  the  jury.i  But  the  lessee  of  premises  to 
which  an  easement  is  appurtenant  cannot  release  or  abandon  it 
so  as  to  bind  the  reversioner.^  If  one  has  acquired  a  right  of 
way  to  a  certain  building  by  enjoyment  or  user,  and  a  public 
highway  is  laid  over  the  site  of  the  building  so  as  to  cover  tlie 
same,  it  will  extinguish  the  right  of  way,  that  for  which  it  was 
to  be  used  having  been  itself  destroyed," 

§  1277.  Easements  of  Light  and  Air,  —  Many  of  the  rules  in 
reference  to  easements  of  ways  apply  to  those  of  light  and  air; 
though  from  their  nature,  it  must  be  obvious,  that,  in  the 
original  acquisition  of  the  right,  a  different  rule  must  prevail. 
It  has  been  held  at  common  law,  that  an  uninterrupted  enjoy- 
ment of  light  and  air  by  the  owner  and  occupant  of  a  house 
standing  near  the  land  of  another,  over  and  across  such  land, 
for  twenty  years  or  more,  gains  for  it  a  right  to  continue  such 
enjoyment  as  an  easement.  And  yet  there  can  have  been  no 
adverse  enjoyment,  as  in  the  case  of  a  way  acquired  over 
another's  land.  The  owner  of  the  house  will  in  no  manner 
have  interfered  with  the  free  enjoyment  by  the  landowner  of 
his  land.  And  by  holding  that,  his  being  suffered  to  enjoy 
that  which  is  the  common  property  of  all,  for  a  certain  length 
of  time,  gives  him  a  right  to  use  it,  though  at  the  expense  of 
the  adjacent  landowner ;  it  leaves  no  alternative  to  the  latter 
but  to  erect  obstructions  thereto,  although  such  enjoyment  in 
no  way  injures  or  affects  him,  except  as  creating  a  prescrip- 
tive, adverse  right.  This,  as  will  be  seen,  has  led  the  Amer- 
ican courts  in  some  cases,  and  the  legislatures  in  others,  to 
repudiate  a  doctrine  so  incompatible  with  the  condition  of 
estates  in  this  country. 

§  1278.  No  Rights  acquired  by  merely  building.  —  Neither  in 
England  nor  in  this  country  does  any  one  acquire  any  right 
to   light   and   air    across    another's    land,   for   the    benefit  of 

1  Taylor  v.  Hampton,  4  MeCocJ,  96  ;  Dyer  v.  Sanford,  9  Met.  395;  Parkins  v. 
Dunham,  3  Strobh.  224. 

2  Glenn  v.  Davis,  35  Md.  208. 

5  Hancock  v.  Went  worth,  5  Met.  446;  Canny  «.  Andrews,  123  Mass,  155; 
Centr.  Whf.  v.  India  Whf,,  id.  567  ;  Mussey  v.  Union  Whf.,  41  Me.  34. 


EASEMENTS.  319 

his  house,  by  simply  erecting  it  upon  the  border  of  his  own 
hind  while  the  adjoining  land  is  unoccupied.  The  owner  of 
the  latter  may,  at  any  time  within  twenty  years,  erect  a  build- 
ing or  other  structure  upon  his  land,  though  he  thereby  wholly 
darkens  or  obstructs  the  light  and  air  of  the  first-mentioned 
liousc,  whatever  may  be  the  motives  by  whicli  he  is  led  to 
create  the  obstruction.^  And  it  is  in  this  way  only  that  the 
latter  can,  by  the  English  common  law,  prevent  the  former 
from  acquiring  a  prescriptive  right  to  this  easement  by  an  en- 
joyment for  twenty  years ;  for  such  easement  is  not  one  which 
is  acquired  by  acts  done  upon  another's  land,  but  by  a  mere 
rightful  enjoyment  of  something  upon  one's  own.^ 

§  1279.  Prescriptive  Easement  arises  from  Presumed  Covenant. 
—  The  easement,  in  such  case,  is  acquired,  not,  as  in  ordinary 
cases,  from  a  presumptive  grant  from  the  servient  to  the 
dominant  estate,  as  in  the  case  of  a  prescriptive  right  of  way, 
but  by  a  presumed  covenant  by  the  owner  of  tlie  servient  estate 
not  to  obstruct  the  light  in  respect  to  such  dominant  estate.^ 
Therefore,  if  the  owner  of  the  latter  tear  down  the  house,  and 
erect  it  upon  another  spot,  he  loses  the  easement.*  So  if  the 
owner  of  the  house,  having  acquired  a  right  of  easement  of 
light  through  a  certain  window,  closes  it  up,  and  opens  another 
of  a  different  size  in  a  different  place,  he  loses  the  right  alto- 
gether. So  if  he  tears  down  an  old  house,  and  builds  a  new 
one,  his  windows  must  not  differ  in  size  or  position  from  the 
old  ones,  so  as  injuriously  to  affect  the  occupant  of  the  ad- 

1  Moore  v.  Rawson,  3  B.  &  C.  332  ;  Tiul.  Lead.  Cas.  123  ;  3d  ed.  201  ;  Ray  v. 
Lynes,  10  Ala.  63  ;  Pierre  v.  Fernald,  26  Me.  436  ;  Dyer  v.  San  ford,  9  Met.  395, 
402 ;  Mahan  v.  Brown,  13  Wend.  261  ;  Smith  v.  Keiirick,  7  C.  B.  51.^,  565. 

2  Cross  V.  Lewis,  2  B.  &  C.  689,  per  Bayley,  J. ;  id.  690,  per  Littledale,  J.  ; 
Parker  v.  Foote,  19  Wend.  309  ;  Stein  v.  Burden,  24  Ala.  130  ;  Rawson  v.  McCal- 
lister,  9  Ky.  Law  Rep.  495  ;  Harbidge  v.  Warwick,  3  Exch.  552  ;  Renshaw  v. 
Bean,  18  Q.  B.  112  ;  Waslib.  Ease.  (4th  ed.)  651;  Dalton  v.  Angus,  L.  R.  6  App. 
Cas.  740,  796,  where  the  same  doctrine  is  applied  to  the  easement  of  lateral  support 
for  buildings. 

3  Moore  v.  Rawson,  3  B.  &  0.  332  ;  H.ill  v.  Lichfield  P.rew.  Co.,  49  L.  J.  Ch. 
656  ;  Parker  v.  Foote,  19  Wend.  309,  316.  But  in  Dalton  v.  Angus,  L.  R.  6  App. 
Cas.  740,  794,  824,  this  doctrine  of  Moore  v.  Rawson  is  doubted,  and  the  right  to 
light  is  held  a  proper  subject  for  grant,  and  that  a  grant  will  be  implied  unless,  as 
in  Webb  v.  Bird,  13  C.  B.  N.  s.  841,  the  claim  is  too  general  and  undefined. 

*  Moore  v.  Rawson,  3  B.  &  C.  332. 


320  INCORPOREAL   HEREDITAMENTS. 

jaocnt  land.^  The  mere  enlargement,  however,  of  a  window, 
would  not  destroy  the  easement  if  it  did  not  impose  a  heavier 
burden  upon  the  servient  estate  than  had  existed  before.^  Nor 
would  a  change  in  the  uses  of  the  room  which  is  lighted  by 
sucli  window  make  any  difference.^ 

§  1280.  Implied  Grant  of  this  Easement.  —  It  was  stated  as  a 
general  proposition  of  the  earlier  law,  that  if  one,  owning  a 
house  with  windows  looking  out  upon  adjoining  land  of  his 
own,  sell  such  house,  he  may  not  afterwards  build  upon  such 
adjacent  land,  and  thereby  stop  or  obstruct  the  light  of  such 
windows.*  But  this  is  denied  in  many  cases,  especially  by 
courts  which  maintain  that  in  this  country  an  easement  of 
light  cannot  be  acquired  by  mere  use  and  enjoyment.^  Thus 
where  A  owned  two  houses  upon  adjoining  lots,  one  of  which 
dei-ived  its  light  over  the  lot  on  which  the  other  stood,  and  he 
sold  them  to  different  owners,  it  was  held  that  the  purchaser 
of  the  latter  might  build  thereon,  although  he  obstructed  the 
windows  of  the  other  house  by  so  doing.^  In  the  case  cited 
below,  the  court  of  Massachusetts  review  all  the  cases  which 
had  been  decided  in  that  State,  from  Story  v.  Odin  downwards, 
and  hold  unqualifiedly,  that  if  one  grants  a  house  having  win- 

1  Blanchard  v.  Bridges,  4  Ad.  &  E.  176  ;  Cherrington  v.  Abney,  2  Vern.  646. 

2  Tud.  Lead.  Cas.  132,  133  ;  3d  ed.  223. 
8  Luttrel's  Case,  4  Rep.  87. 

4  Ante,  §  1235  ;  Story  v.  Odin,  12  Mass.  157.  See  also  Grant  i'.  Chase,  17  Mass. 
443 ;  Cox  v.  Matthews,  1  Ventr.  239  ;  Robeson  v.  Pittenger,  2  N.  J.  Eq.  57  ;  Sut- 
phen  I'.  Therkelson,  38  N.  J.  Eq.  318  ;  Janes  v.  Jenkins,  34  Md.  1 ;  Greer  v.  Van 
Meter,  54  N.  J.  Eq.  270 ;  s.  c.  33  Atl.  Rep.  794. 

^  Myers  v.  Gemniel,  10  Barb.  543,  where  it  is  said  that  Story  v.  Odin,  supra, 
was  law,  not  on  the  ground  stated,  but  because  the  windows  looked  out  into  an 
open  public  court.  The  court  in  that  case  deny  the  English  doctrine,  and  hold, 
that  when  the  lessor  let  premises  opening  upon  his  land,  and  afterwards  built  upon 
this  open  land  so  as  to  darken  the  windows  of  the  demised  premises,  he  was  not 
liable  to  the  lessee  for  so  doing.  The  same  rule  is  affirmed  in  Doyle  v.  Lord,  64  N.  Y. 
432,  and  Shipman  v.  Beers,  2  Abb.  N.  Gas.  435.  Where  two  adjacent  parcels  of 
land,  one  having  a  dwelling-house  with  windows  looking  out  upon  the  other,  were 
sold  at  auction  the  same  day,  it  was  held,  that  no  implied  easement  of  light  or  air 
passed  thereby  with  such  house,  though  the  deed  of  the  house  was  first  delivered. 
Collier  v.  Pierce,  7  Gray,  18  ;  Turner  v.  Thompson,  58  Ga.  268.  See  Washb. 
Ease.  (4th  ed.)  651-669. 

6  Mullen  V.  Strieker,  19  Ohio  St.  135.  In  Janes  v.  Jenkins,  34  Md.  1,  the  right 
of  one  of  two  purchasers  to  obstruct  the  light  of  another  was  constructively  limited 
by  tlie  terms  of  the  grant. 


EASEMENTS.  321 

dows  looking  out  over  vacant  land,  whether  his  own  or  other- 
wise, he  does  not  grant  tlierewith  any  casement  of  light  and 
air,  unless  it  be  by  express  terms;  it  never  passes  by  implica- 
tion.^ In  Royce  v.  Guggenheim ^  it  is  pretty  fairly  implied, 
that,  if  the  easement  of  light  is  necessary  to  the  enjoyment  of 
an  estate  granted,  it  might  be  so  far  implied,  that  the  grantor 
would  not  be  at  liberty  to  destroy  it.  In  several  States  a  less 
stringent  rule  is  held ;  i.  e.  that  if  the  easement  of  light  is 
reasonably  necessary  to  a  granted  estate,  it  passes  by  implica- 
tion,^ [But  where  land  is  sold  as  abutting  on  a  street  which 
belongs  to  the  vendor,  the  vendee  takes  by  implication  an 
easement  of  light,  air,  and  prospect  over  such  street.*] 

§  1281.  Prescriptive  Light  and  Air  in  America.  —  The  ten- 
dency of  late  years,  in  this  country,  has  been  against  the 
doctrine  of  gaining  a  prescriptive  right  to  the  enjoyment  of 
light  and  air,  as  an  easement  appurtenant  to  an  estate,  on  the 
ground  that  it  is  incompatible  with  the  condition  of  a  country 
which  is  undergoing  such  radical  and  rapid  changes  in  the  prog- 
ress of  its  growth.  And  while  Delaware  and  Louisiana  retain 
the  common  law  on  this  subject  as  it  has  been  understood  in 
England,^  it  has  been  discarded  in  New  York,  Massachusetts, 
South  Carolina,  Maine,  Maryland,  Alabama,  Pennsylvania, 
Georgia,  Indiana,  New  Jersey,  Illinois,  Coimecticut,  California,. 
Kansas,  Ohio,  Texas,  Vermont,  and  West  Virginia.^ 

1  Keats  V.  Hugo,  115  Mass.  204.  See  also  Randall  v.  Sanderson,  111  Mass.  114. 
So  in  Iowa  and  Kansas.  Morrison  v.  Marquardt,  24  Iowa,  35  ;  Lapere  v.  Lucky, 
23  Kan.  534. 

2  106  Mass.  201.  The  same  seems  to  be  the  rule  in  Connecticut.  Robinson  v. 
Clapp,  65  Conn.  365  ;  s.  c.  32  Atl.  Rep.  939. 

3  Powell  v.  Sims,  5  W.  Va.  1  ;  Sutphen  v.  Therkelson,  38  N.  J.  Eq.  311  ; 
Renti3'Son's  App.,  94  Penn.  St.  147  ;  Turner  v.  Thompson,  58  Ga.  268  ;  Ray  v. 
Sweeny,  14  Bush,  1  ;  White  i;.  Bradley,  66  Me.  254.  Cf.  Cooper  v.  Louanstein, 
37  N.  J.  Eq.  284. 

*  Fitzgerald  v.  Barbour,  55  Fed.  Rep.  440  ;  s.  c.  5  C.  C.  A,  180  ;'.s.  c.  3  U.  S. 
App.  565  ;  Dill  v.  Board  of  Education,  47  N.  J.  Eq.  421;  s.  c.  20  Atl.  Rep.  739; 
s.  c.  10  L.  R.  A.  276. 

8  Clawson  v.  Primrose,  4  Del.  Ch.  643  ;  Durel  v.  Boisblanc,  1  La.  Ann.  407. 

0  Parker  v.  Foote,  19  Wend.  309;  Doyle  v.  Lord,  64  N.  Y.  432;  Shipman  v. 
Beers,  2  Abb.  N.  Cas.  435  ;  Myers  v.  Gemmel,  10  Barb.  537  ;  Mahan  v.  Brown, 
13  Wend.  263;  Banks  v.  Amer.  Tract  Soc,  4  Sandf.  Ch.  438;  Mass.  Pub.  Stat, 
c.  122,  §  1 ;  Collier  v.  Pierce,  7  Gray,  18  ;  Carrig  v.  Dee,  14  Gray,  583  ;  Rogers 
V.  Sawin,  10  Gray,   376  ;  Paine  v.  Boston,  4  Allen,   168 ;  Napier  v.   Bulwinkle, 

VOL.    II.  —  21 


322  INCORPOREAL    HEREDITAMENTS. 

§  1282.  Light  and  Air  by  Express  Grant.  —  Still  there  is 
nothing  to  prevent  acquiring  an  easement  of  light  and  air  in 
this  country  by  an  express  grant  or  covenant,  in  respect  to 
which  the  same  rules  of  law  apply,  as  regards  its  enjoyment 
and  any  unlawful  obstruction  thereof,  as  are  known  to  the 
English  common  law.i  The  only  difference  between  the  two 
is  in  the  mode  of  acquiring  the  easement.  Thus  if  one  is 
obstructed  in  the  enjoyment  of  such  an  easement,  he  may  have 
an  action  on  the  case  for  the  same.^ 

§  1283.  Easement  of  Prospect.  —  But  the  right  to  have  a 
certain  prospect  from  one's  estate  as  an  easement  cannot  be 
acquired  by  enjoyment,  however  long  continued.  Nor  will 
such  a  right  pass  by  implication  of  grant,  excepting  the  case 
of  a  street  view,^  though  it  may  be  created  and  pass  by  express 
grant  or  covenant.  Nor  can  a  man  maintain  an  action  for  a 
nuisance  against  another  for  erecting  on  his  own  land  that 
which  obstructs  the  view  from  the  house  of  the  former,  unless 
the  right  has  been  acquired  by  express  grant  or  covenant.* 

§  1284.  Rights  of  Riparian  Proprietors.  —  When  the  subject 
of  easements  in  the  use  of  water  is  considered,  the  distinction 
should  be  kept  in  mind  which  is  familiar  to  the  law,  between 

5  Rich.  311,  overruling  McCready  v.  Thomson,  Dudley,  131  ;  Pierre  v.  Fernald, 
26  Me.  436  ;  White  v.  Bradley,  66  Me.  254 ;  Cherry  v.  Stein,  11  Md.  1,  24, 
overruling  Wright  v.  Freeman,  5  Harr.  &  J.  477;  Ward  v.  Neal,  37  Ala.  501, 
overruling  Ray  v.  Lynes,  10  Ala.  63  ;  Hoy  v.  Sterrett,  2  Watts,  331  ;  Haverstick 
V.  Sipe,  33  Penn.  St.  368,  371;  Renuyson's  App.,  94  Penn.  St.  147;  Turner  w. 
Thompson,  58  Ga.  268  ;  Stein  v.  Hauck,  56  Ind.  25  ;  Hayden  v.  Dutcher,  31  N.  J. 
Eq.  217;  Sutphen  v.  Therkelson,  38  N.  J.  Eq.  311,  323  ;  King  v.  Miller,  8  N".  J. 
Eq.  559,  overruling  Robeson  v.  Pittinger,  2  N.  J.  Eq.  54  ;  Guest  v.  Reynolds,  68 
m.  478,  explaining  Gerber  v.  Grabel,  16  111.  217  ;  Ingraham  v.  Hutchinson,  2  Conn. 
597;  Western  Granite  and  Marble  Co.  u.  Knickerbocker,  103  Cal.  Ill  ;  s.  c.  37  Pac. 
Rep.  192 ;  Lapere  v.  Luckey,  23  Kan.  534  ;  s.  c.  33  Am.  Rep.  196  ;  Mullen  v. 
Strieker,  19  Ohio  St.  135  ;  s.  c.  2  Am.  Rep.  379  ;  Klein  v.  Gerung,  25  Tex. 
Supp.  232 ;  Hubbard  v.  Town,  33  Vt.  294 ;  Powell  v.  Sims,  5  W.  Va.  1 ;  s.  c.  13 
Am.  Rep.  629  ;  Tinker  v.  Forbes,  136  111.  221  ;  .s.  c.  26  N.  E.  Rep.  503. 

1  Cooper  V.  Louanstein,  37  N.  J.  Eq.  284  ;  Christ  Church  v.  Mack,  93  N.  Y. 
488  ;  Lattimer  v.  Livermore,  72  X.  Y.  174  ;  Salisbury  v.  Andrews,  128  Mass.  336. 

2  McCready  v.  Thomson,  1  Dudl.  (S.  C.)  131  ;  Mahan  v.  Brown,  13  Wend. 
263. 

8  See  §  1365. 

*  Atty.-Gen.  v.  Doughty,  2  Ves.  Sen.  453  ;  Squire  v.  Campbell,  1  Mylne  &  C. 
459  ;  Aldred's  Case,  9  Rep.  58  h  ;  Parker  v.  Foote,  19  Wend.  309  ;  Tud.  Lead.  Cas. 
123  ;  3d  ed.  201;  Dalton  v.  Angus,  L.  R.  6  App.  Cas.  740,  824  ;  Bowden  v.  Lewis, 
13  R.  I.  189. 


EASEMENTS.  323 

the  right  to  enjoy  the  use  of  water  in  its  natural  state,  and 
that  which  grows  out  of  its  application  by  artificial  means. 
Property  in  water,  in  connection  with  real  estate,  can  only  be 
predicated  of  its  use,  which  serves  by  its  enjoyment  to  give  a 
value  to  the  corporeal  hereditaments  with  which  its  use  is 
applied.  Thus  the  proprietor  of  land  bordering  upon  a 
running  stream  has  a  right  to  the  benefit  to  be  derived  from 
the  flow  of  water  thereof,  as  a  natural  incident  to  his  estate, 
and  no  one  may  lawfully  divert  the  same  against  his  consent.^ 
Nor  can  this  right  be  considered  as  an  easement,  since  it 
belongs  to  the  estate  of  the  landowner  through  which  the 
water  flows,  as  forming  one  of  the  elements  of  which  this 
estate  is  composed.^  Nor  does  it  make  any  difference  that  the 
extent  to  which  he  may  enjoy  this  right  may  be  sensibly 
affected  by  the  exercise  of  a  similar  right  by  other  riparian 
proprietors  upon  the  same  stream.^  There  are  sundry  uses 
which  each  successive  owner  along  the  stream  may  exercise, 
though  by  so  doing  he  impairs  to  some  extent  the  enjoyment 
by  others  of  the  full  flow  of  the  water,  provided  it  be  done  in  a 
reasonable  manner,*  and  not  so  as  thereby  to  destroy  or  materi- 
ally diminish  the  supply  of  the  water,  or  render  useless  its 
application  by  the  other  riparian  proprietors,  either  by  the 
quantity  consumed,^  or  by  corrupting  its  quality,^  by  throwing 

1  Mason  v.  Hill,  5  B.  &  Ad.  1  ;  Tud.  Lead.  Cas.  119  ;  3d  ed.  191  ;  Ang.  Wat. 
Cour.  §  136  ;  Wamesit  P.  Co.  v.  Allen,  120  Mass.  352  ;  Weis  v.  Madison,  75  Ind. 
241.  Even  with  legislative  consent.  Merrill  v.  St.  Anthony  W.  P.  Co.,  26  Minn. 
222.  Unless  compensation  is  made  to  him.  D wight  Co.  v.  Boston,  122  Mass. 
583. 

2  Gary  v.  Daniels,  8  Met.  466,  480  ;  Dalton  v.  Angus,  L.  R.  6  App.  Cas.  740  ; 
Sc river  t;.  Smith,  100  N.  Y.  471.     It  in  publici  juris.     Ibid. 

3  Merrifield  v.  Worcester,  110  Mass.  216  ;  Snow  v.  Parsons,   28  Vt.  459,  461. 

*  Acquacknonk  Water  Co.  v.  Watson,  29  N.  J.  Eq.  366 ;  Richmond  Man.  Co. 
V.  Atlantic  Delaine  Co.,  10  R.  I.  106 ;  Baltimore  v.  Warren  Man.  Co.,  59  Md.  96  ; 
Ghisfelter  v.  Walker,  40  Md.  1  ;  McCormick  v.  Horan,  81  N.  Y.  86;  Garwood  v. 
N.  Y.  Cent.  &  H.  R.  R.  R.  Co.,  83  X.  Y.  400  ;  Lehigh  Valley  R.  R.  Co.  v.  McFarlan, 
30  N.  J.  Eq.  180  ;  Farrell  v.  Richards,  id.  511  ;  Higgins  v.  Flemington  Water  Co., 
36  N.  J.  Eq.  538  ;  Lockwood  Co.  v.  Lawrence,  1  East.  Rep.  403  ;  Willis  i;.  City  of 
Perry,  92  Iowa,  297;  s.  c.  60  N.  W.  Rep.  729  ;  s.  c.  26  L.  R.  A.  124  ;  Gehlen  v. 
Knorr,  101  Iowa,  700 ;  s.  c.  70  N.  W.  Rep.  757. 

6  Railroad  Co.  v.  Carr,  38  Ohio  St.  448;  Moulton  v.  Newburyport  Co.,  137 
Mass.  162;  Westbrook  Man.  Co.  v.  Warren,  1  East.  Rep.  608. 

6  Dwight  Co.  V.  Boston,  122  Mass.  583,  589;  Harris  v.  Mackintosh,  133  Mass. 


324  INCORPOREAL    HEREDITAMENTS. 

it  back  upon  the  lands  of  others  above,  or  diverting  and  stop- 
ping its  flow  so  as  to  affect  such  lands  below  his  own  premises.^ 
[Moreover,  these  riparian  rights  are  property  which  cannot  be 
impaired  in  the  public  interest,  e.  g.,  by  the  discharge  of  city 
sewage,  without  compensation  being  made  therefor.^  Nor 
would  it  make  any  difference  that  the  damage  to  the  riparian 
proprietor  was  small  in  comparison  with  the  benefits  accruing 
to  the  public.^]  Each  case  must  depend  upon  its  own  circum- 
stances ;  but  among  the  uses  to  which  a  riparian  proprietor 
may  be  said  to  have  a  natural  right  to  apply  the  waters  of  a 
stream  to  the  extent  already  indicated  are  such  agricultural 
and  domestic  purposes  as  irrigating  his  land,  watering  his 
cattle,  and  the  like.*  And  to  make  a  riparian  proprietor  liable 
for  the  diversion  of  water,  in  any  case,  it  must  be  done  to  such 
an  extent  as  to  cause  a  perceptible  damage  thereby  to  the  party 

228;  Jackson  v.  Arlington  Mills,  137  Mass.  277;  Silver  Spring  D.  &  B.  Co.  v. 
Wanskuck  Co.,  13  R.  I.  611  ;  Ogletree  v.  McQuagg,  67  Ala.  .580  ;  Lockwood  Co. 
V.  Lawrence,  ubi  supra ;  Jacobs  v.  AUard,  42  Vt.  403  ;  Caufield  v.  Andrew,  54  Vt. 
1 ;  Prentice  v.  Geiger,  74  N.  Y.  341 ;  Goodyear  v.  Schaefer,  57  Md.  1 ;  Robinson 
V.  Bl.  Dia.  Coal  Co.,  57  Cal.  412  ;  Wood  v.  Sutcliffe,  16  Jur.  N.  s.  75  ;  Pennington 
V.  Brinsop  Co.,  5  Ch.  Div.  769;  Morgan  v.  City  of  Danbury,  67  Conn.  484;  s.  c. 
35  Atl,  Rep.  499  ,  Nolan  v.  City  of  New  Britain,  69  Conn.  668  ;  s.  c.  38  Atl. 
Rep.  703.  Thus,  where  a  fish-tank  was  fouled  by  a  colliery.  Sanderson  v.  Penn. 
Coal  Co.,  86  Penn.  St.  401 ;  s.  c.  94  Penn.  St.  302.  The  use  of  the  majority  con- 
trols. Hazletine  v.  Case,  46  Wis.  39,  Or  the  use  by  each  is  subject  to  all  the 
others'  reasonable  use.  ilerrifield  v.  Worcester,  110  Mass.  216  ;  Snow  v.  Parsons, 
28  Vt.  459. 

1  Stowell  V.  Lincoln,  11  Gray,  434.  So  the  upper  proprietor  cannot  cause  it 
to  flow  with  increased  volume  or  substantially  altered  force.  Fletcher  v.  Smith, 
L.  R.  2  App.   Cas.    781. 

2  Morgan  v.  City  of  Danbury,  supra ;  Nolan  v.  City  of  New  Britain,  supra ; 
New  York  Central,  etc.  v.  City  of  Rochester,  127  N.  Y.  591  ;  s.  c.  28  N,  E.  Rep. 
416  ;  Morse  v.  City  of  Worcester,  139  Mass.  389 ;  s.  c.  2  N.  E.  Rep.  694 ;  Peter- 
son V.  City  of  Santa  Rosa,  119  Cal.  387  ;  s.  c.  51  Pac.  Rep.  557;  Owens  v.  City  of 
Lancaster,  182  Pa.  St.  257;  s.  c.  37  Atl.  Rep.  858.  Contra,  City  of  Richmond  v. 
Test,  18  Ind.  App.  482;  s.  c.  48  N.  E.  Rep.  610. 

3  Stock  V.  Jefferson  Township,  114  Mich.  357;  s.  c.  72  N.  W.  Rep.  132  ;  s.  c. 
38  L.  R.  A.  355. 

*  Mason  v.  Hill,  5  B.  &  Ad.  1  ;  Tud.  Lead.  Caa.  119 ;  3d  ed.  191  ;  Ang.  Wat. 
Cour.  §  146  ;  Wood  i;.  Waud,  3  Exch.  743,  775  ;  Enibrey  v.  Owen,  6  id.  353,  citing 
liberally  from  3  Kent,  Com.  439,  445  ;  Webb  v.  Portland  Co.,  3  Sumn.  189 ;  and 
see  Tyler  v.  Wilkinson,  4  Mason,  397;  Blanchard  v.  Baker,  8  Me.  253.  See 
American  cases  in  6  Exch.  373,  Am.  ed.  ;  Sampson  v.  Hoddinott,  1  C.  B.  N.  s.  590  ; 
W'eston  V.  Alden,  8  Mass.  136.  Maintaining  a  fish  preserve  is  a  proper  use.  San- 
derson V.  Penn.  Coal  Co.,  86  Penn.  St.  401. 


EASEMENTS.  325 

who  complains  of  such  diversion  ;  ^  the  test  in  such  case  being 
a  reasonable  use  of  the  water  of  the  stream  in  cases  of  irriga- 
tion, which  depends  upon  the  quantity  of  water,  the  nature  of 
the  soil  to  be  affected  by  its  application,  and  the  like.  No  one 
proprietor  in  such  a  case  has  a  right  to  appropriate  so  much  of 
the  stream  as  essentially  to  deprive  a  proprietor  below  of  the 
benefit  of  the  same.^  Nor  may  a  proprietor  of  land  upon  a 
stream,  for  purposes  of  irrigation,  stop  the  flow  of  the  water 
by  a  dam  across  the  stream ;  ^  but  he  may  by  prescription  gain 
such  a  right,  if  the  existence  of  the  dam  and  use  of  tlie  water 
has  been  of  sufficient  duration.*  And  though  a  land  proprietor 
may  for  this  purpose  cut  sluices  in  the  banks  of  a  stream  in  the 
United  States,  he  may  not  even  do  this  in  England,  in  order 
thereby  to  divert  the  water  on  to  the  land  intended  to  be 
benefited  by  irrigation.^  On  the  other  hand,  the  owner  of 
land  bordering  upon  a  stream  may  drain  his  land  into  the 
stream.^  In  many  cases,  however,  one  landowner  may  acquire 
a  right  to  apply  the  use  of  water  upon  his  own  land,  so  as 
essentially  to  impair  its  use  by  other  proprietors  above  or 
below  him,  and  even  to  interfere  thereby  with  the  enjoyment 
of  the  land  of  another ;  as,  for  instance,  by  stopping  the  water 
of  a  stream  in  his  own  land,  and  flowing  back  the  same  upon 
the  land  of  a  proprietor  above  him,  or  diverting  it  so  as  to 
waste  it,  or  prevent  its  reaching  the  land  of  a  proprietor  below 
him  in  its  natural  and  usual  quantity.  A  right  thus  to  inter- 
fere with  the  natural  right  to  make  use  of  water  belonging  to 
another,  where  it  is  connected  with  the  occupation  of  land, 
would  constitute  an  easement  in  favor  of   the  latter,  as  the 

1  Elliot  V.  Fitchb.  R.  R.  Co.,  10  Cush.  191  ;  Fletcher  v.  Smith,  L.  R.  2  App. 
Cas.  781.  Taking  water  to  fill  locomotive  boilers  is  actionable,  if  it  causes  actual 
damage  to  a  lower  riparian  proprietor.  Garwood  v.  N.  Y.  Cent.  &  Hudson  R. 
R.  R.  Co.,  83  N.  Y.  400. 

2  Arnold  V.  Foot,  12  Wend.  330  ;  Miller  v.  Miller,  9  Penn.  St.  74. 

8  Colburn  v.  Richai-ds,  13  Mass.  420;  Anthony  v.  Lapham,  5  Pick.  175;  Samp- 
son V.  Hoddinott,  1  C.  B.  N.  s.  .^90.  Or  create  a  nuisance  injurious  to  health. 
Ogletree  v.  McQuagg,  67  Ala.  580. 

*  Messinger  v.  Uhler,  2  East.  Rep.  602. 

5  Embrey  v.  Owen,  6  Exch.  357. 

®  Treat  v.  Bates,  27  Mich.  395.  Or  turn  in  a  collected  volume  of  surface  flow, 
if  the  watercourse  can  carry  it.  Waffle  v.  N.  Y.  Cent.  R.  R.,  53  N.  Y.  11  ;  Noonan 
V.  Albany,  79  N.  Y.  470  ;  McCormick  v.  Horan,  81  N.  Y.  86  ;  Miller  v.  Laubach, 
47  Penn.  St.  154. 


326  INCORPOREAL   HEREDITAMENia 

dominant  estate.  Such  an  easement  may  be  acqnired  like 
other  easements,  by  grant,  or  by  an  adverse  enjoyment  so  long 
continued  as  to  raise  a  legal  presumption  of  a  graut.^ 

§1285.  Priority  of  Use  determines  Milling  Rights.  —  From 
the  nature  of  its  use,  however,  there  must  be  cases  where  a 
simple  occupation  of  the  water  of  a  stream  gives  the  proprietor 
a  right  to  the  undisturbed  enjoyment  of  it,  without  any  such 
evidence  of  grant  as  an  easement,  althougli  by  such  enjoyment 
he  deprives  another  proprietor  above  or  below  him  of  the  right 
of  a  similar  application  of  the  water  within  his  own  premises, 
the  mere  priority  of  an  application  to  use  of  the  water  deter- 
mining the  priority  of  right.  Such  would  be  the  case  where  a 
stream,  flowing  through  the  lands  of  two  or  more  persons,  has 
a  sufficient  fall  in  its  current  to  operate  a  mill  by  a  dam  erected 
upon  the  land  of  either  of  these  proprietors,  but  only  sufficient 
for  a  single  mill  privilege  or  power.  In  such  a  case,  the  first 
of  these  proprietors  who  shall  appropriate  and  occupy  this  fall 
for  the  purposes  of  a  mill  acquires  thereby  the  exclusive  right 
to  use  the  same  to  the  extent  to  which  he  shall  have  actually 
occupied  and  appropriated  the  fall,  though  by  so  doing  he  may 
prevent  the  proprietor  above  or  below  him  from  making  a 
similar  occupation  and  appropriation  on  his  own  land.  He 
would  not,  however,  by  such  appropriation,  acquire  any  right 
to  flow  back  the  water  of  the  stream  upon  the  land  of  the 
proprietor  above  him,  or  to  divert  it  from  that  of  the  proprietor 
below  him,  without  first  gaining  this  as  an  easement  by  grant, 
or  an  enjoyment  for  the  requisite  period  of  time.^  Notwith- 
standing the  rights  which  may  be  acquired  in  respect  to  a  mill 

1  Manning  v.  Wasdale,  5  Ad.  &  E.  758  ;  Goldsmid  v.  Trim.  W.  Imp.  Co.,  L.  R. 
1  Ch.  App.  349  ;  Wiley  v.  Hunter,  2  East.  Rep.  228.  No  easement  to  pollute  can 
be  acquired  against  a  statute  prohibition.  Brookline  i'.  Mackintosh,  133  Mass. 
215.  Nor  can  a  public  nuisance  be  estalilished  by  prescription.  Commonwealth  v. 
Upton,  6  Gray,  473  ;  N.  Salem  v.  Eagle  Co.,  138  Mass.  8  ;  State  v.  Frankl.  F. 
Co.,  49  N.  H.  256  ;  Woodyear  v.  Schaefer,  57  Md.  1  ;  Koppf  v.  Utter,  101  Penn. 
St.  27.  So  in  case  of  an  encroachment  on  a  public  way.  Perley  v.  Hilton,  55 
N.  H.  444.  Unless  by  statute.  Cutter  v.  Cambridge,  6  Allen,  20  ;  Holt  v.  Sargent, 
15  Gray,  97. 

2  Mason  v.  Hill,  5  B.  &  Ad.  1;  Williams  v.  Morland,  2  B.  &  C.  910,  913; 
Liggins  V.  Inge,  7  Bing.  682  ;  Cary  v.  Daniels,  8  Met.  466  ;  Bealey  v.  Shaw, 
6  East,  209  ;  Ang.  Wat.  Cour.  §§  130,  135;  Frankum  v.  Falmouth,  6  C.  &  P.  529  ; 
M'Calmont  v.  Whitaker,  3  Rawle,  84. 


EASEMENTS,  327 

by  its  prior  erection,  one  may  erect  a  mill  upon  his  own  privi- 
lege above  an  existing  mill,  and  operate  the  same,  though  he 
thereby  diverts  some  of  the  water  of  the  stream,  provided  he 
only  does  what  is  reasonably  necessary  in  operating  his  own 
mill,  unless  the  lower  mill  shall  have  acquired  an  exclusive 
right  to  the  whole  of  the  stream.^  And  when  a  right  to  the 
use  of  water  has  become  attached  to  a  mill  as  an  easement,  it 
will  not  be  affected  by  any  change  in  the  character  of  the  mill, 
or  in  the  wheels  by  which  it  is  operated,  provided  the  use  of 
the  water  remains  substantially  the  same.^  And  a  mill-owner 
has  not  only  a  right  to  discharge  the  water  from  his  mill 
through  the  natural  channel  into  another's  land  below  his  mill, 
but  also  to  enter  and  clear  such  channel  from  obstructions 
affecting  the  free  flow  of  the  water.^  But  though  these  rights 
are  popularly  called  easements,  they  are  rather  incidents  of 
property  in  the  estate  of  the  upper  proprietor.  So  he  may 
acquire  by  grant  or  prescription  a  right  to  discharge  the  water 
of  his  mill  by  a  race-way  through  the  land  of  another,  and,  as 
incident  thereto,  will  thereby  have  a  right  to  enter  and  clear 
the  race-way  in  a  customary  manner,  though  he  may  ncA^er 
have  used  the  right  before.  But  if  he  owns  land  on  one 
side  of  such  race-way,  he  may  not  use  the  land  of  the  otiier 
beyond  what  is  necessary  in  removing  the  materials  which 
obstruct  the  flow  of  the  water,'*  So  one  may  acquire  an  ease- 
ment to  discharge  water  upon  the  land  of  another,  whether  in 
a  pure  or  noxious  state,  by  an  artificial  channel,  or  by  a  pi|)e, 
or  by  suffering  the  water  from  the  eaves  of  his  house  to  fall 
upon  his  neighbor's  land.^ 

§  1286.  Foregoing  Rules  inapplicable  to  Percolations  or  Sur- 
face-water.—  These  remarks  as  to  stopping  or  diverting  the 
water  of  a  stream  apply,  however,  only  to  those  cases  where 
the  water  has  formed  for  itself  a  channel  and  current  along 

1  Piatt  V.  Johnson,  15  Johns.  213  ;  Brace  v.  Yah',  10  Allen,  4il  ;  s.c.  97  Mass, 
18  ;  s.  c.  99  Mass.  488. 

2  Saunders  v.  Newman,  1  B.  &  Ahl.  258  ;  Luttrel's  Case,  4  Rep.  87  ;  Whittier 
V.  Cocheco  Mfg.  Co.,  9  N,  H.  454  ;  Olcott  v.  Thompson,  59  N.  H.  154. 

3  Prescott  V.  Williams,  5  Met.  429 ;  Washb.  Ease,  336. 
*  Prescott  V.  White,  21  Pifk.  341. 

5  Wright  V.  Williams,  1  M,  &  W.  77  ;  Thomas  v.  Thomas,  2  C.  M.  &  R.  40  ; 
Tud.  Lead.  Cas.  120  ;  Cherry  v.  Stein,  11  Md,  1  ;  Ashley  v.  Ashley,  6  Gush.  70. 


328  INCORPOREAL    HEREDITAMENTS. 

which  it  is  flowing  at  the  time.  A  man,  for  instance,  may 
drain  his  swamp,  although  by  so  doing  he  may  prevent  the 
water  which  was  accustomed  to  collect  there  from  penetrating 
the  earth  and  thereby  finding  its  way  into  a  stream  which 
flows  to  an  existing  mill,  and  thus  diminish  the  quantity 
that  is  usually  supplied  thereby.^  So  if  the  water  of  a  well 
is  accustomed  to  overflow  and  spread  itself  upon  the  adjacent 
land  without  forming  any  definite  channel,  the  owner  may 
stop  such  overflow,  although  he  thereby  prevents  its  draining 
into  a  ditch  through  which  it  finds  its  way  into  a  mill-stream, 
and  in  that  way  injuriously  affects  the  operation  of  a  mill 
thereon.2  But  if  a  spring  issues  out  of  the  ground  upon  one 
man's  land,  and  flows  therefrom  in  a  natural  channel  upon  the 
land  of  another,  the  owner  of  the  spring  may  not  give  a  new 
direction  to  such  stream,  or  waste  the  water  on  his  own  land 
to  the  injury  of  the  other  landowner.^  And  surface-water  will 
not  become  a  watercourse  by  being  collected  into  a  ditch.* 

§  1287.  Percolations,  how  distinguished  from  Watercourses. 
—  In  these  cases  it  is  somewiiat  difficult  to  discriminate  with 
certainty  between  what  shall  be  considered  a  watercourse  and 
what  is  merely  a  flow  of  surface-water.  Occasional  floods  of 
water  caused  by  unusual  rains,  or  the  melting  of  snow,  which 
flow  over  the  entire  surface  of  land  and  fill  up  low  and  marshy 
places,  do  not  constitute  watercourses,  altli(jugh  they  may  flow 
through  narrow  ravines  and  gorges,  and  thus  assume  the 
appearance  of  well-defined  streams.^  But  if  the  surface-water 
has  flowed  in  a  certain  direction  for  such  a  length  of  time  as 
to  have  formed  a  bed  and  banks  and  a  well-defined  channel,  it 
is  a  watercourse,  although  it  may  sometimes  run  dry.^     And 

1  Case  V.  Hoffman,  100  Wis.  314  ;  s.  c.  72  N.  W.  Rep.  390,  citing  a  large 
number  of  recent  authorities.  And  this  rule  was  applied  where  the  removal  of  the 
water  injured  adjoining  land  by  removing  its  support.  Popplewell  v.  Hodkins, 
L.  R.  4  Exch.  248. 

2  Broadbent  v.  Ramsbotham,  11  Exch.  602  ;  Wheatley  v.  Baugh,  25  Peun.  St. 
528  ;  Rawstron  v.  Taylor,  11  Exch.  369. 

8  Arnold  V.  Foot,  12  Wend.  330  ;  Wheatley  v.  Baugh,  25  Penn.  St.  528  ;  Dud- 
den  V.  Guardians,  etc.,  1  H.  &  N.  627  ;  Earl  v.  De  Hart,  12  N.  J.  Eq.  280;  Strait 
V.  Brown,  16  Nev.  317,  even  if  the  channel  be  underground. 

*  Case  V.  Hoffman,  supra. 

6  Morrison  v.  Bucksport,  67  Me.  353  ;  Barkley  v.  Wilcox,  86  N.  Y.  140. 

6  Eulrich  v.  Richter,  41  Wis.  318 ;  s.  c.  37  Wis.  226. 


EASEMENTS,  329 

til  is  has  been  held  true  of  floods  of  surface-water  caused  by 
heavy  rains  recurring  at  periods,  as  in  the  spring  or  rainy 
season.^  [To  constitute  a  watercourse,  the  size  of  the  stream 
is  not  material,  nor  need  the  flow  be  continuous.^  And  a  water- 
course is  not  deprived  of  its  character  because,  on  account  of 
the  level  character  of  the  land,  it  broadens  out  over  a  wide 
space  apparently  without  banks.^] 

§  1288.  Aqueducts.  —  One  may  acquire  a  right  to  maintain 
an  aqueduct  through  another's  land  by  a  user  of  twenty  years 
or  more.  And  where  such  right  has  once  been  acquired,  it 
would  be  no  cause  of  forfeiture  of  the  same  if  the  one  having 
the  easement  should  permit  others  to  make  use  of  the  privilege 
of  drawing  water  thereby,  if  such  use  did  not  transcend  the 
easement  as  originally  enjoyed.  Thus  where  A  B,  after  having 
acquired  an  easement  of  drawing  water  from  a  spring  in  the 
close  of  C  D  for  the  use  of  his  house,  permitted  E  and  F  to 
make  use  of  the  same  for  the  benefit  of  their  houses,  it  was 
held  that  the  easement  was  not  thereby  affected.'*  But  where 
a  way  or  watercourse  is  granted  to  run  in  a  particular  channel 
or  direction,  it  gives  the  grantee  no  right  to  divert  it,  or  use  it 
in  any  other  place.^ 

§  1289.  Who  bound  to  make  Repairs.  — If  one  OWns  the  right 
of  a  watercourse  in  the  land  of  another,  it  is  incumbent  upon 
him  to  keep  the  same  in  repair,  unless  the  landowner  is  bound 
by  some  covenant  to  make  repairs.  And  to  this  end  he  has 
the  right,  as  incident  to  the  principal  easement,  to  enter  upon 
the  servient  estate  and  do  whatever  is  necessary  to  make  such 
repairs,  such  as  digging  up  the  soil  and  the  like,  but  doing  no 
unnecessary  damage  thereby.^ 

1  Palmer  v.  Wacldell,  22  Kan.  352  ;  Taylor  v.  Fickas,  64  Ind.  167  ;  Schliohter 
V.  Phillips,  67  Ind.  201  ;  Hebron  Grav.  Co.  v.  Harvey,  90  Ind.  192-194  ;  Peck  v. 
Harrington,  109  111.  611.  Contra,  Gibb.s  v.  Williams,  25  Kan,  214  ;  Boynton  v. 
Oilman,  53  Vt.  17.  Cf.  Kauffnian  v.  Griesemer,  26  Penn.  St.  408  ;  Earl  i;.  De 
Hart,  12  N.  J.  Eq.  280  ;  Shane  v.  Kans.  C.  R.  K.  Co.,  71  Mo.  237.  As  to  under- 
ground  watercourses,  see  post,  §  1292  ;  Shively  v.  Hume,  10  Oreg.  76. 

2  Town  ('.  Mo.  Pac.  Ry.  Co.,  50  Neb.  768 ;  s.  c.  70  N.  \V.  Kep.  402. 

3  N.  Y.,  C.  &  St.  L.  R.  Co.  V.  Hamlet  Hay  Co.,  149  Ind.  344  ;  .s.  c.  47  N.  E.  Rep. 
1060. 

4  Watkins  v.  Peck,  13  N.  H.  360. 

6  Northam  v.  Hurley,  1  E.  &  B.  665  ;  Jennison  v.  Walker,  11  Gray,  423. 
6  Peter  v.  Daniel,  5  C.  B.  568 ;  Prescott  v.  White,  21  Pick.  341. 


330  INCORPOREAL    HEREDITAMENTS. 

§  1290.  Springs  fed  from  Percolations.  —  The  rule  in  relation 
to  diverting  a  natural  watercourse,  to  the  injury  of  other 
riparian  proprietors,  does  not  apply  to  underground  springs 
of  water.  So  that  if  in  digging  a  well  or  cellar,  or  working  a 
mine  in  his  own  land,  a  man  cuts  off  the  source  which  by  perco- 
lation supplies  his  neighbor's  well,  and  thereby  diverts  it  into  his 
own,  or  drains  the  well  of  his  neighbor,  the  latter  is  without 
remedy  ;  it  is  dajiinum  absque  injuria,  if  not  negligently  or 
maliciously  donc.^  "  If  a  man  dig  a  well  in  his  own  field,  and 
thereby  drains  his  neighbor's,  he  may  do  so  unless  he  does  it 
maliciously."  ^  The  case  of  Chasemore  v.  Richards  will  serve 
to  illustrate  the  above  doctrine.  It  was  first  decided  in  the 
Exchequer  Chamber,  and  afterwards  by  the  House  of  Lords, 
and  involved  the  question  how  far  the  owner  of  land  may  ap- 
propriate to  his  own  use  the  water  that  falls  upon  it  in  the  form 
of  rain  and  sinks  into  it,  where,  by  so  doing,  he  prevents  its  find- 
ing its  way  by  percolation  into  a  stream  which  supplies  the  mill 
of  another,  and  thereby  injuriousl}'  affects  such  mill-owner.  It 
was  held  that  the  I'ight  to  do  this  belonged  to  the  landowner; 
nor  would  he  be  liable  for  exercising  it,  though  the  mill-owner 
suffered  damage  thereby.  In  that  case  the  landowner  dug  a 
large  well  in  his  premises,  which  received  the  water  from  the 

1  Acton  V.  Blundell,  12  M.  &  W.  324,  353,  cites  Dig.  Lib.  39,  tit.  3,  §  12  ; 
Greenleaf  v.  Francis,  18  Pick.  117  ;  Aug.  Wat.  Cour.  (3d  ed.)  §§  109-115;  liam- 
mond  V.  Hall,  10  Sim.  551  ;  Smith  v.  Kenrick,  7  C.  B.  566  ;  Washb.  Ease, 
c.  3,  §  7  ;  4tli  ed.  504 ;  Chatfield  v.  Wilson,  28  Vt.  54 ;  Saddler  v.  Lee,  66  Ga.  45  ; 
Hale  V.  McLea,  53  Gal.  578;  Huston  ?-.  Leach,  53  Cal.  262  ;  Chase  v.  Silverstone, 
62  Me.  175  ;  Trout  v.  McDonald,  83  Penu.  St.  142 ;  Coleman  v.  Chadwick,  80  id. 
81;  ante,  §  1286;  Acton  v.  Blundell,  12  M.  &.  W.  324;  Dickinson  «.  Canal  Co., 
7  Exch.  300,  per  Pollock,  C.  B.  ;  Chasemore  v.  Richards,  5  Hurlst.  &  N.  982. 

'^  Acton  V.  Blundell,  12  M.  &  W.  336.  As  to  the  act  being  malicious  or  other- 
wise, see  Washb.  Ease.  (4th  ed.)  525-528,  and  cases  cited.  The  courts  are  not 
wholly  agreed  upon  the  question  whether  the  malice  of  the  act  will  render  the  doer 
liable.  It  was  held  in  the  affirmative  in  Maine.  Chesley  v.  King,  74  Me.  164. 
But  this  was  later  somewhat  modified.  Heywood  v.  Tillotson,  75  Me.  225.  And 
the  following  cases  hold  that  even  if  the  act  is  malicious,  tlie  person  who  does 
it  is  not  liable.  Phelps  v.  Nowlen,  78  N.  Y.  40  ;  Chatfield  v.  Wilson,  28  Vt.  49  ; 
Walker  v.  Cronin,  107  Mass.  564,  jier  Wells,  J.  ;  Glendon  v.  Uhler,  75  IV.nn.  St. 
467  ;  Jenkins  v.  Foster,  24  Penn.  St.  308,  per  Black,  .J.  ;  14  Alb.  L.  J.  61 ;  Cooley, 
Torts,  688,  691.  Cf.  Harwood  v.  Benton,  32  Vt.  737.  If  by  agreement  one  party 
has  gained  a  right  to  such  percolations,  any  interference  with  them  by  any  other 
party  to  the  agreement  is  of  course  actionable.  Johnstown  Cheese  Man.  Co.  v. 
Veghts,  69  N.  Y.  16. 


EASEMENTS.  831 

adjacent  land  ;  and  from  this  well  a  considerable  neighborhood 
was  supplied.^  The  case  of  Broadbent  v.  Ranisbotham^  is  in 
affirmance  of  the  doctrine  of  Chasemore  v.  Richards,  as  is  that 
of  Rawstron  v.  Taylor  ;^  and  they  further  show  that  whenever 
a  landowner  has  upon  his  land  spongy,  boggy,  or  swampy  places, 
whicli  serve  to  feed  a  stream  by  soaking  or  percolating  through 
the  earth,  but  whose  waters  have  not  been  formed  into  a  definite 
course  or  stream,  he  may  make  any  proper  use  of  the  waters  so 
collected,  although  by  so  doing  he  diminish  tlie  accustomed 
supply  of  water  of  such  stream,  and  thereby  injuriously  affect 
the  mill-owners  upon  the  same.* 

§  1291.  Springs  fed  from  Percolations  —  Illustrations.  — 
Besides  the  cases  already  cited  from  the  American  reports  are 
those  of  Roath  v.  Driscoll,^  Ellis  v.  Duncan,^  and  Wheatley  v. 
BaughJ  In  the  first  of  these,  the  owner  of  one  parcel  sank  a 
well  or  artificial  watering-place  in  his  premises,  which  had  the 
effect  to  diminish  the  quantity  of  water  in  a  like  well  or  arti- 
ficial watering  place  in  the  adjacent  land  of  another  owner.  In 
the  second,  the  injury  arose  from  diverting  and  stoppiug  the 
underground  supj)ly  of  water,  which  rose  in  the  plaintiff's 
ground  in  a  spring  by  digging  ditches  and  woi'king  a  quarry 
by  the  defendant  on  his  own  land.  So,  in  the  last,  the  plaintiff 
had  a  spring  upon  his  land,  the  waters  of  which  he  had  applied 
to  the  purposes  of  a  tannery.  The  defendant,  in  sinking  the 
shaft  of  a  mine  on  his  own  land  at  a  distance  of  five  hundred 
and  fifty  yards  from  the  spring,  cut  off  the  underground  sup- 
ply of  the  same.  But  in  all  these  cases  it  was  held  that  the 
plaintiff  was  without  remedy  for  the  injury  thereby  sustained, 
because  the  defendauts  did  no  more  than  they  had  a  lawful 

1  Chasemore  r.  Richards,  2  Hurlst.  &  N.  168  ;  s.  c.  5  id.  982. 

2  Broadbent  v.  Ramsbotham,  11  Exch.  602. 

8  Rawstron  v.  Taylor,  11  Exch.  369.  And  see  Case  v.  Hoffman,  100  Wis.  314  ; 
s.  C  72  N.  W.  Rep.  390,  in  which  many  late  American  decisions  to  the  same  point 
are  collated  ;  Farwell  v.  Sturgis  "Water  Co.,  10  S.  Dak.  421  ;  s.  c.  73  N.  W.  Rep. 
916. 

■*  Luther  v.  Winnisimmet  Co.,  9  Cash.  171 ;  Dudden  v.  Guardians,  etc.,  1  Hurlst. 
&  N.  627  ;  Dickinson  v.  Canal  Co.,  7  Exch.  301  ;  Broadbent  r.  Ramsbotham,  11 
Exch.  602. 

*  Roath  V.  Driscoll,  20  Conn.  533. 

6  Ellis  V.  Duncan,  21  Barb.  230. 

">  Wheatley  i;.  Baugh,  25  Penn.  St.  528;  Haldeman  v.  Burckhardt,  45  id.  519. 


332  INCORPOREAL    HEREDITAMENTS. 

right  to  do.^  So  where  one  sold  another  the  right  to  draw- 
water  from  a  spring  in  his  land,  and  then  sold  the  land  to 
another,  who  dug  a  well  in  the  same,  twenty-seven  feet  from 
the  spring,  which  cnt  off  its  supply  of  water,  it  was  held  that 
the  owner  of  the  spring  was  without  remedy .^  But  if  the  per- 
colating waters  have  collected  in  a  spring,  and  formed  a  natu- 
ral and  defined  watercourse  by  which  they  are  discharged,  one 
would  have  no  right  to  dig  in  his  own  land  so  as  to  draw  away, 
by  underground  percolation,  the  water  from  the  spring,  so  as 
thereby  to  destroy  this  natural  watercourse.^  And  if  the 
waters  which  have  been  diverted  had  formed  themselves  into 
a  natural  defined  stream  or  watercourse,  such  diversion  would 
be  tlie  ground  of  an  action  by  the  lower  proprietor  upon  the 
stream,  whether  the  same,  where  diverted,  were  above  or  un- 
derneath the  surface.*  On  the  other  hand,  the  owner  of  land, 
whose  underground  supply  of  water  has  been  cut  off  by  one 
who  does  not  own  the  land  in  which  the  act  is  done,  may  have 
an  action  for  the  loss  thereby  sustained.  The  onl}'  ground 
upon  which  such  act  is  to  be  justified  is  the  right  incident  to 
the  ownership  of  the  land  where  it  is  done.°  Nor  may  a  land- 
owner poison  or  foul  the  water  percolating  through  it,  so  as 
to  render  it  deleterious  in  its  qualities  when  it  reaches  the 
adjacent  owner.  ^ 

§  1292.  No  Prescriptive  Rights  in  Underground  Percolations. 
—  From  this  right,  jure  naturce,  to  use  and  appropriate  whatever 
is  within  one's  own  premises,  and  the  impossibility  there  is,  in 
the  case  of  underground  percolating  waters,  of  knowing  by  one 
owner  that  the  springs  which  supply  the  well  or  tlie  spring  of 
an  adjacent  owner  are  derived  from  the  land  of  the  former, 
no  length  of  enjoyment  by  such  well  or  spring  owner  of  the  use 

1  Prickman  v.  Tripp,  Skinn.  389  ;  Cooper  v.  Barber,  3  Taunt.  99. 

2  Bliss  V.  Greeley,  45  X.  Y.  671,  674. 

3  Gr.  June.  Canal  v.  Shugar,  L.  R.  6  Ch.  483,  488  ;  Trustees  of  Delhi  v.  You- 
mans,  45  N.  Y.  862;  Washb.  Ease.  (4th  ed.)  507-509. 

*  Dudden  v.  Guardians,  etc.,  1  Hurlst.  &  N.  630  ;  Dickinson  v.  Canal  Co., 
7  Exch.  301  ;  Smith  v.  Adams,  6  Paige,  435  ;  Radclitf  v.  Mayor,  4  N.  Y.  200 ;  Sad- 
dler V.  Lee,  66  Ga.  45  ;  Hebron  Grav.  Co.  v.  Harvey,  90  Ind.  192 ;  Strait  v.  Brown, 
16  Nev.  317 ;  Shively  v.  Hume,  10  Oreg.  76.  This  last  case  was  of  an  intermit- 
tent underground  current. 

s  Parker  v.  Bost.  &  M.  R.  R.  Co.,  3  Gush.  107. 

«  Hodgkinsou  v.  Eunor,  4  Best  &  S.  229. 


EASEMENTS.  333 

of  the  water  thereof  will  give  him  any  adverse  prescriptive 
right  against  the  adjacent  landowner,  since  no  one  can  be  pre- 
sumed to  have  granted  that  of  the  existence  of  which  he  could 
have  had  no  knowledge.  The  case  of  Balston  v.  Bensted  ^  has 
been  often  cited  as  sustaining  a  different  doctrine;  and  the 
opinion  of  Story,  J.,  in  Dexfcer  v.  Providence  Aqueduct  Co.,^ 
rather  favors  the  idea  that  one  may  gain  a  prescriptive  right  to 
the  use  of  water  under  such  circumstances.  But  the  question 
has  been  both  directly  and  indirectly  raised  and  discussed  in 
several  modern  cases ;  and  it  is  believed  tliat  the  law  is  now 
settled,  so  far  as  it  has  been  settled  at  all,  against  the  claim  of 
a  prescriptive  right  to  the  benefit  of  waters  percolating  through 
the  land  of  another.^ 

§  1293.  Right  of  Upland  to  Natural  Drainage  over  Lo-wland.  — 
Another  natural  right  asserted  in  some  States  as  incident  to 
the  ownership  of  land,  is  the  right  of  a  higher  field  to  have  the 
surface-water  flow  off  upon  a  lower  field.  This  right  only 
applies  to  the  natural  flow  of  the  water.  If  the  owner  of  the 
higher  field  makes  ditches  or  trenches,  so  as  to  cast  the  sur- 
face-water upon  the  lower  field  in  large  quantities  at  particular 
places,  the  owner  of  the  lower  field  may  resist  this  by  embank- 
ments, or  have  an  action  for  his  injury.^  This,  however,  does 
not  exclude  proper  cultivation  of  the  soil.^ 

§  1294.  Artificial  "Watercourses.  —  There  is  a  marked  and  im- 
portant distinction  between  the  rights  which  may  be  acquired 
by  a  land  or  mill  owner  in  a  natural  stream,  and  an  artificial 
one  which  is  created  for  temporary  purposes,  although  these 

^  Balston  v.  Bensted,  1  Campb.  463. 

2  Dexter  v.  Prov.  Aq.  Co.,  1  Story,  303.  See  also  Greenleaf  v.  Francis,  18  Pick. 
122  ;  Chasemore  v.  Richards,  2  H.  &  N.  183  ;  s.  c.  .5  H.  &  N.  982;  Dickinson  v. 
Canal  Co. ,  7  Exch.  282. 

8  Roath  V.  Driscoll,  20  Conn.  .^33,  541 ;  Wheatley  v.  Bangh,  25  Penn.  St.  528  ; 
Hoy  V.  Sterrett,  2  Watts,  330  ;  Broadbent  v.  Ramsbotham,  11  Exch.  602  ;  Frazier 
V.  Brown,  12  Ohio  St.  294,  311;  Ingraham  v.  Hutchinson,  2  Conn.  584,  597; 
Washb.  Ease.  (4th  ed.)  529-534. 

♦  Hughes  V.  Anderson,  68  Ala.  280  ;  Hicks  v.  Silliman,  93  111.  255  ;  Mellor  r. 
Pilgrim,  3  111.  Ap.  476  ;  s.  c.  7  111.  Ap.  306  ;  Tenipleton  v.  Voshloe,  72  Ind.  134  ; 
Davis  V,  Londgreen,  8  Neb.  43  ;  Adams  v.  Walker,  34  Conn.  466 ;  Ogburn  v.  Con- 
nor, 46  Cal.  346  ;  Freudenstein  v.  Heine,  6  Mo.  Ap.  287 ;  Lord  v.  Carbon  Iron 
Man.  Co.,  33  N.  J.  Eq.  452 ;  Conklin  v.  Boyd,  46  Mich.  56. 

^  Bowman  v.  New  Orleans,  27  La,  Ann.  501  ;  Gue.snard  v.  Bird,  33  id.  796 ;  La. 
Rev.  Code,  art.  660. 


334  INCORPOREAL   HEREDITAMENTS. 

rights  have  been  enjoyed  for  more  than  twenty  yeai*s.  Thus, 
in  addition  to  tlie  cases  already  cited  in  respect  to  natural 
streams,  it  is  held  that  if  the  owner  of  the  fountain-head  of  a 
natural  stream  within  his  land  divert  the  waters  thereof  from 
their  original  chaimel  and  suffer  them  to  flow  in  a  new  one  for 
twenty  years,  and  in  that  time  an  owmer  below  him  has  applied 
the  water  to  the  use  of  a  mill,  such  owner  of  the  fountain  can- 
not again  change  its  course  to  the  injury  of  such  mill-owner.^ 
So  if  the  owner  of  two  lots  of  land  through  which  a  stream  of 
water  flows  sells  one  of  them,  neither  he  nor  his  grantee  will 
have  a  right  to  stop  or  divei't  the  stream,  since  the  right  to 
the  natural  flow  of  the  water  is  incident  to  and  inherent  in 
the  land,  in  whosesoever  hands  it  may  be.^  But  where  the 
watercourse  is  an  artificial  one,  created  by  the  discharge  of 
water  artificially  supplied,  the  riparian  proprietors  of  the  lands 
through  which  it  flows,  or  the  owners  of  mills  or  other  hy- 
draulic works  upon  the  same,  are  without  remedy  if  the  owners 
of  the  source  of  supply  of  such  stream  so  change  it  as  to  im- 
pair or  destroy  the  benefit  of  the  same  to  such  other  owners  or 
proprietors,  especially  if  the  original  purposes  of  such  water- 
course w'ere  temporary  in  their  nature.  And  this  is  true 
though  such  mill-owner  or  riparian  proprietor  may  have  en- 
joyed the  same  for  more  than  twenty  yeara.^  Thus  where  a 
channel  was  dug  to  drain  the  water  from  certain  mines,  and 
its  outlet  was  into  a  stream  wliich  carried  the  plaintiff's  mill, 
and  the  owner  of  the  mines  dug  a  new  channel  lower  than  the 
first,  which  drew  down  the  water  from  the  first,  so  that  it 
could  not  feed  the  plaintiff's  mill,  it  was  held  that  the  latter 
was  without  remedy  for  the  loss.  For,  first,  he  knew  the  pur- 
poses for  which  the  channel  was  dug,  and  therefore  had  no 
reason  to  suppose  he  could  gain  a  perpetual  right  merely  by 
enjoying  it  so  long  as  to  create  a  prescriptive  grant  to  that 

1  Belknap  v.  Trimble,  3  Paige,  577,  605 ;  Delaney  v.  Boston,  2  Harring.  489, 
491. 

2  Tucl.  Lead.  Cas.  Ill  ;  3d  ed.  174. 

2  This  rule  has  not  been  universally  followed.  Thus,  where  one  constructed  an 
artificial  channel,  and  allowed  water  to  flow  through  it  and  over  the  land  of 
another  for  more  than  twenty  years,  it  was  held  that  the  other  had  acquired  a  pre- 
scriptive right  to  have  the  flow  of  water  in  the  artificial  channel  remain  uninter- 
rupted. Shepardson  v.  Perkins,  58  N.  H.  352  ;  Reading  v.  Althouse,  93  Penn.  St. 
400,     Cf.  Bowne  v.  Deacon,  32  N.  J.  £q.  459, 


EASEMENTS.  335 

effect ;  and,  second,  because  his  enjoyment  of  the  water  was  in 
no  sense  adverse  to  tlie  owner  of  the  channel,  so  as  thereby  to 
acquire  an  easement  therein.  Another  illustration  of  the  gen- 
eral proposition  is  that  of  the  owner  of  a  mine  i)um{)ing  the 
water  from  the  same,  and  suffering  it  to  flow  for  twenty  years 
upon  the  land  of  a  neighboring  proprietor,  and  thereby  enrich- 
ing it  for  agricultural  purposes.  The  latter  does  not  thereby 
gain  a  right  to  insist  upon  the  owner  of  the  mine  continuing 
to  pump  the  water,  when  he  has  no  longer  occasion  to  do  so 
for  his  own  purposes.  And  another  instance  where  use  will 
not  give  an  adverse  right  is  that  of  water  falling  from  the  eaves 
of  one's  house ;  though  enjoyed  by  another  for  twenty  years, 
the  owner  may  take  it  down,  and  put  a  stop  to  the  same,  if  he 
choose.^  So  where  A  had  an  artificial  drain  in  his  land  for 
agricultural  purposes,  and  suffered  the  water  to  flow  therefrom 
to  the  land  of  B  for  twenty  years,  by  which  the  land  of  the 
latter  was  benefited,  it  was  held  that  if  A  deepened  and 
changed  his  drain,  thereby  depriving  B's  land  of  its  benefit,  B 
was  without  remedy  for  the  loss.^  But  though  the  one  who 
thus  creates  the  flow  of  water  may  stop  if  he  please,  he  cannot 
foul  it  with  impunity  while  it  continues  to  flow,  to  the  injury 
of  those  below  upon  the  stream.'^ 

§  1295.  [The  Right  to  cut  Ice  is  a  natural  right  incident  to 
riparian  ownership.  There  is  the  same  right  in  the  ice  that 
there  may  be  in  the  water,  "  for  ice  is  water  in  another  form."  * 
The  limitation,  as  in  the  case  of  the  consumption  of  the  water, 
is  that  the  proprietor  must  not  appreciably  diminish  the  flow  to 
the  damage  of  the  lower  riparian  owner.^] 

1  Arkwright  v.  Gell,  5  M.  &  W.  203  ;  Tud.  Lead.  Cas.  120  ;  3d  ed.  199  ; 
Napier  v.  Buhvinkle,  5  Rich.  311  ;  Wood  v.  "Waud,  3  Exch.  748  ;  Magor  v.  Chad- 
wick,  11  Ad.  &  E.  571  ;  Sampson  v.  Hoddiiiott,  1  C.  B.  n.  s.  590;  Washb.  Ease. 
(4th  ed.)  418-427. 

2  Greatrex  v.  Hayward,  8  Exch.  291.     See  Wood  v.  Waud,  3  Exch.  778. 

3  Wood  V.  Waud,  3  Exch.  777. 

*  Brown  v.  Cunningham,  82  Iowa,  512;  s.  c.  48  N.  W.  Eep.  1042;  s.  c.  12 
L.  R.  A.  583  ;  Marsh  v.  McNider,  88  Iowa,  390  ;  s.  c.  55  N.  W.  Rep.  469  ;  .s.  c.  45 
Am.  St.  Rep.  240  ;  s.  c.  20  L.  R.  A.  333  ;  Hydraulic  Co.  v.  Butler,  91  Ind.  134  ; 
s.  c.  46  Am.  Rep.  580 ;  Ice  Co.  v.  Guthrie,  42  Neb.  238 ;  s.  c.  60  N.  W.  Rep.  722 ; 
s.  c.  28  L.  R.  A.  581. 

6  Paine  v.  Woods,  108  INIass.  172;  Howe  v.  Andrews,  62  Conu.  398  ;  s.  c.  26 
Atl.  Rep.  394.     See  ante,  §  3,  note  2. 


336  INCORPOREAL   HEREDITAMENTS. 

§  1296.  Natural  Right  of  Lateral  Support.  —  Of  a  nature  some- 
what akin  to  the  easement  of  light  connected  with  the  owner- 
ship of  a  house  is  that  of  support,  or  the  right  of  having  one's 
land  and  the  structures  erected  thereon  supported  by  the  land 
of  a  neighboring  proprietor.  The  proposition  may  be  stated 
thus  :  A,  owning  a  piece  of  land  without  any  buildings  upon  it, 
has  a  natural  right  of  lateral  support  for  his  land  from  the  ad- 
joining land.  This  right  exists  independent  of  grant  or  pre- 
scription, and  is  also  an  absolute  right ;  ^  so  that  if  his  neighl)or 
excavates  the  adjoining  land,  and  in  consequence  A's  land  falls, 
he  may  have  an  action,  although  A's  excavation  was  not  care- 
lessly or  unskilfully  performed.  This  natural  right  does  not 
extend  to  any  buildings  A  may  place  upon  his  land  ;  and  there- 
fore if  A  builds  his  house  upon  the  verge  of  his  own  land,  he 
does  not  thereby  acquire  a  right  to  have  it  derive  its  support 
from  the  land  adjoining. ^  Such  adjacent  owner  may  excavate 
his  own  land  for  such  purposes  as  he  sees  fit,  provided  he  does 
not  dig  carelessly  or  recklessly  ;  and  if  in  so  doing  the  adjacent 
earth  gives  way,  and  the  house  falls  by  reason  of  the  additional 
weight  thereby  placed  upon  the  natural  soil,  the  owner  of  the 
house  is  without  remedy.  It  was  his  own  folly  to  place  it 
thcre.^  But  if  it  shall  have  stood  for  twenty  years  with  the 
knowledge  of  the  adjacent  proprietor,  it  acquires  the  easement 
of  a  support  in  the  adjacent  soil.  [This  is  the  English  doc- 
trine, but  the  American  authorities  take  an  opposite  view,  on 
the  ground  that  the  adjacent  proprietor  is  without  means  to 

1  Stimmel  v.  Brown,  7  Houst.  219  ;  s.  c.  30  Atl.  Rep.  996 ;  Schnltz  v.  Bower, 
57  Minn.  493  ;  s.  c.  59  N.  W.  631. 

2  Thurston  t'.  Hancock,  12  Mass.  220 ;  s.  c.  7  Am.  Dec.  57  ;  Myer  v.  Hobbs,  57 
Ala.  175;  Winn  v.  Abeles,  35  Kan.  85  ;  s.  c.  10  Pac.  Rep.  443. 

8  Angus  V.  Dalton,  L.  R.  6  App.  Cas.  740 ;  Partridge  v.  Scott,  3  M.  &  W.  220; 
Wyatt  V.  Harrison,  3  B.  &  Ad.  871  ;  Wilde  v.  Minsterley,  2  Rolls,  Abr.  564,  565  ; 
Thurston  v.  Hancock,  12  Mass.  220,  229  ;  Callender  v.  Marsh,  1  Pick.  418;  Gil- 
more  V.  Driscoll,  122  Mass.  199  ;  White  v.  Dresser,  135  Mass.  150  ;  Panton  v.  Hol- 
land, 17  Johns.  92  ;  Myer  v.  Hobbs,  57  Ala.  175  ;  Buskirk  v.  Strickland,  47  Mich. 
389  ;  Bait.  &  Pot.  R.  R.  Co.  v.  Reany,  42  Md.  117  ;  Shafer  v.  Wilson,  44  Md.  268  ; 
Wier's  App.,  81  Penn.  St.  203  ;  Stevenson  v.  Wallace,  27  Gratt.  77.  Cf.  McMillen 
V.  Watt,  27  Ohio  St.  306.  It  has  been  held  that  where  the  whole  value  of  land  is 
its  minerals,  which  can  only  be  obtained  by  destroying  it,  as  in  getting  gold  by 
hydraulic  mining,  the  right  of  lateral  support  does  not  exist  as  between  owners  of 
adjacent  lanil,  both  using  theirs  in  this  manner.  Hendricks  i'.  Spring  Valley 
Mining  Co.,  58  Cal.  190. 


EASEMENTS.  337 

secure  the  removal  of  a  building  which  its  owner  has  an  abso- 
lute right  to  maintain.^]  Every  one  has  so  far  a  right  to  have 
his  own  soil  sustained  by  that  of  his  neighbor,  that  the  latter 
may  not  dig  so  near  to  the  land  of  the  former  as  to  cause  the 
same  to  fall  into  the  excavation  by  its  own  natural  weight. 
He  ought  to  guard  against  such  a  consequence  by  proper  care 
and  the  application  of  proper  means  of  support.  The  right  of 
lateral  support,  in  such  case,  is  an  incident  to  the  land  itself. 
In  the  language  of  Rolle  :  "  It  seems  that  a  man  who  has  land 
next  adjoining  to  my  land  cannot  dig  his  land  so  near  to  my 
land  that  thereby  my  land  shall  fall  into  the  pit ;  and  for 
this,  if  an  action  were  brought,  it  would  lie."^  [And  the 
right  to  damages  for  removal  of  the  support  does  no^  de- 
pend on  negligence,  but  on  the  violation  of  the  absolute  right 
to  support.^]  But  this  right  of  a  landowner  to  support  his  land 
against  that  of  the  adjacent  owner  does  not,  as  before  stated, 
extend  to  the  support  of  any  additional  weight  or  structure  that 
he  may  place  thereon.  If  therefore  a  man  erect  a  house  upon 
his  own  land  so  near  the  boundary-line  thereof  as  to  be  injured 
by  the  adjacent  owner  excavating  his  land  in  a  proper  manner, 
and  so  as  not  to  have  caused  the  soil  of  the  adjacent  parcel  to 
fall  if  it  had  not  been  loaded  with  an  additional  weight,  it  would 
be  damnum  absque  injuria,  a  loss  for  which  the  person  so  excavat- 
ing the  land  would  not  be  responsible  in  damages.*  But  even 
if  the  house  had  been  recently  erected,  the  adjacent  owner  will 
be  responsible  for  excavating  upon  his  own  land  so  as  to  injure 

1  Hide  V.  Thornborongh,  2  Cur.  &  K.  250;  Mitchell  v.  Rome,  49  Ga.  19; 
Richart  y.  Scott,  7  Watts,  460;  Handhuid  v.  McManus,  100  Mo.  124;  s.  c.  13 
S.  W.  207  ;  Tuiistall  v.  Cliri.stian,  80  Va.  1  ;  Sullivan  r.Zeiiier,  98  Cal.  346  ;  s.  c.  33 
Pac.  Rep.  209  ;  s.  c.  20  L.  R.  A.  730. 

2  Wilde  V.  Minsteiley,  2  Rolle,  Abr.  565  ;  Schultz  v.  Bower,  57  Minn.  493  ;  s.  c. 
59  N.  W.  Rep.  631  ;  s.  c.  47  Am.  St.  Rep.  630. 

3  Humphries  v.  Broaden,  12  Q.  B.  743;  Thurston  v.  Hancock,  12  Mass.  229  ; 
Lasala  v.  Holbrook,  4  Paige,  169;  Farrand  v.  Marshall,  21  Barb.  409;  Wyatt  r. 
Harrison,  3  B.  &  Ad.  871  ;  Bibby  v.  Carter,  4  Hurlst.  &  N.  153  ;  McGuire  v.  Grant, 
25  N.  J.  356 ;  Charless  i'.  Rankin,  22  Mo.  566  ;  Hay  v.  Cohoes  Co.,  2  N.  Y.  162  ; 
Richardson  v.  Verm.  Cent.  R.  R.  Co.,  25  Vt.  465. 

*  Thurston  v.  Hancock,  12  Mass.  220  ;  Gihnore  v.  Driscoll,  122  Mass.  199  ; 
Partridge  v.  Scott,  3  M.  &  W.  220  ;  Lasala  v.  Holbrook,  4  Paige,  169  ;  Mc(".uire  v. 
Grant,  25  N.  J.  356  ;  Charless  v.  Rankin,  22  Mo.  556  ;  Napier  ;;.  Bulwinkle, 
5  Rich.  311  ;  Wyatt  w.  Harrison,  3  B.  &  Ad.  871  ;  Palmer  v.  Fleshecs,  1  Sid.  167  ; 
Gayford  v.  Nicliolls,  9  Exch.  702  ;  Rogers  v.  Taylor,  2  Hurlst.  &  N.  828. 
VOL.  II. —  22 


338  INCORPOREAL   HEREDITAMENTS. 

or  impair  its  foundations,  if  the  injury  results  from  tlie  negli- 
gent, unskilful,  and  improper  manner  in  which  it  was  done.^ 
Or,  in  the  words  of  the  court :  "  So  long  as  the  excavation  did 
not  extend  beyond  their  [defendants']  own  land,  and  was  not 
negligently  or  unskilfully  done,  any  injury  to  an  adjacent  pro- 
prietor would  be  damnum  absque  injuria.''''  ^  But  in  a  late  Eng- 
lish case  the  doctrine  seems  to  be  sustained,  that,  if  the  digging 
would  not  have  caused  any  appreciable  damage  to  the  adjacent 
land  in  its  natural  state,  it  would  not  be  the  ground  of  an  ac- 
tion. And  this  position  is  laid  down  in  a  case  where  the  build- 
ings of  the  plaintiff  were  thrown  down  as  a  direct  or  remote 
consequence  of  the  digging.^ 

§  1297.  Lateral  Support  —  Streets.  —  [The  owner  of  land 
abutting  on  a  higliway  has  no  right  to  the  lateral  support  of 
the  soil  of  the  street  as  against  the  public  authorities,  who, 
acting  within  the  scope  of  their  authority,  lower  the  grade  of 
the  street.*  But  the  right  to  the  lateral  support  of  the  soil 
of  the  street  exists  as  against  a  private  corporation  in  no  way 
connected  with  the  government,  which  obtains  authority  to 
change  the  grade  for  its  own  purposes.^] 

§  1298.  Foregoing  Principles  applied  to  Mines.  —  If  the  own- 
ership of  a  mine  be  severed  from  tliat  of  the  surface-soil,  the  one 
who  excavates  for  the  minerals  must  be  careful  to  supply  all 
necessary  support  for  the  surface-soil  if  his  excavation  endan- 
gers its  natural  support.^     As  this  right  of  support  for  the  sur- 

1  Dodd  V.  Holme,  1  Ad.  &  E.  493  ;  Panton  v.  Plolland,  17  Johns.  92;  Cbarless 
V.  Rankin,  22  Mo.  566,  573  ;  Shrieve  v.  Stokes,  8  B.  Mon.  (Ky.)  453;  McGuire  v. 
Grant,  25  N.  J.  356.  See  Foley  v.  Wyeth,  2  Allen,  131  ;  Richardson  v.  Verm. 
Cent.  R.  R.  Co.,  25  Vt.  465,  471  ;  Washb.  Ease,  c.  4,  §  1  ;  4th  ed.  580. 

2  Austin  V.  Huds.  Riv.  R.  R.  Co.,  25  N.  Y.  338,  346. 

8  Smith  V.  Thackerah,  L.  R.  1  C.  B.  564 ;  Backhouse  v.  Bohomi,  9  H.  L.  Cas. 
503  ;  8.  c.  suh  nom.  Bouomi  v.  Backhouse,  E.  B.  &  E.  622 ;  Stroyau  v.  Knowles, 
6  Hurlst.  &  N.  454  ;  Brown  v.  Robins,  4  Hurlst.  &  N.  186. 

4  City  of  Quincy  v.  Jones,  71  111.  231  ;  2  Dill.  Mun.  Corp.  §§  989,  990  ;  Sel- 
den  V.  Jacksonville,  28  Fla.  559  ;  s.  c.  10  So.  Rep.  457.  This  is  the  prevailing 
doctrine  in  America  ;  but  it  is  somewhat  qualified  in  Ohio  aud  Kentucky.  See 
2  Dill.  Mun.  Corp.  §  990,  note. 

6  Baltimore  &  Potomac  R.  R.  Co.  v.  Reaney,  42  Md.  117. 

6  Humphries  v.  Brogden,  12  Q.  B.  739  ;  Harris  v.  Ryding,  5  M.  &  W.  60  ;  Nick- 
lin  V.  Williams,  10  Exch.  259  ;  Washb.  Ease.  c.  4,  §  4  ;  4th  ed.  630 ;  Smart  v. 
Morton,  5  E.  &  B.  30  ;  Dugdale  v.  Robertson,  3  Kay  &  J.  695,  699,  unless  the 
surface-owner  had  authorized  the  mine-owner  to  work  his  mine  without  having 


EASEMENTS.  339 

face-land,  moreover,  is  absolute  and  independent  of  the  question 
of  negligence,^  it  is  no  defence  to  say  that  the  excavations  were 
prudently  made,  or  such  as  were  customary  in  that  neighbor- 
hood.2  A  custom  to  mine  without  leaving  sufficient  support  for 
the  surface  is  bad.^  A  grant  to  coal-land,  with  all  the  privi- 
leges usually  appurtenant  to  the  working  and  using  coal-mines, 
does  not  give  the  right  to  remove  the  surface-support,  even  if 
such  is  the  usual  mode  of  mining,  for  the  usage  is  an  illegal 
one  ;*  but  if  the  grant  of  land  contain  a  release  of  all  liability 
for  any  injury  resulting  from  removing  the  surface-support, 
the  owner  of  the  coal  may  remove  the  whole  without  liability.^ 
This  right  of  support  for  the  surface-land  is  limited  to  land, 
and  does  not  extend  to  buildings,  unless  they  have  stood  thereon 
for  twenty  years  ;  if,  however,  the  owner  of  the  surface  have 
had  a  house  standing  thereon  for  twenty  years,  the  one  exca- 
vating for  minerals  is  bound  to  leave  or  provide  support  for 
such  house  as  well  as  the  soil.^ 

§  1299.  Of  Support  of  Adjoining  Houses.  —  In  some  cases, 
the  owners  of  adjacent  houses  acquire,  or  are  subjected  to,  the 
easement  of  a  lateral  support  for  the  wall  of  one  against  that  of 
the  other.  This  is  the  case  where  one  builds  several  houses  in 
a  block,  and  afterwards  sells  them  to  different  persons.'^  But 
wheic  two  persons  have  two  houses  in  juxtaposition,  neither 
has  a  right  to  the  support  of  the  other,  independent  of  a  grant ; 
nor  does  any  length  of  time  furnish  evidence  of  such  a  grant.^       ^^ 

supports.  Rowbotham  v.  Wilson,  8  E.  &  B.  123 ;  Seranton  v.  Phillips,  94 
Penn.  St.  15  ;  Carliii  i;.  Chappel,  101  Penn.  St.  348  ;  Hext  v.  Gill,  L.  R.  7  Cli. 
App.  6'J9. 

1  Carliii  V.  Chappel,  101  Penn.  St.  348  ;  Erickson  v.  Mich.  Land.  &  Ir.  Co.,  60 
Mich.  604.     Cf.  Livingston  v.  Monigona  Coal  Co.,  49  Iowa,  369. 

2  Jones  V.  Wagner,  66  Penn.  St.  429. 

3  Horner  v.  Watson,  79  Penn.  St.  242. 

*  Coleman  v.  Chadwick,  80  Penn.  St.  81. 

6  Seranton  v.  Phillips,  94  Penn.  St.  15. 

6  Rogers  v.  Taylor,  2  Hurlst.  &  N.  828  ;  Marvin  v.  Brewster  Iron  Min.  Co.,  55 
N.  Y.  538  ;  Jones  v.  Wagner,  supra.  But  it  is  difficult  to  see  why  the  American 
doctrine  which  un(iualifiedly  denies  a  ])rescrij)tive  right  to  lateral  support  beyond 
the  absolute  right  to  have  the  soil  supported  in  its  natural  state  (see  a7Ue,  §  1296), 
should  not  be  applied  to  this  class  of  cases. 

^  Richards  v.  Rose,  9  Exch.  218  ;  Webster  v.  Stevens,  5  Duer,  553  ;  Eno  v.  Del 
Vecchio,  4  Duer,  53;  Solomon  v.  Vintner's  Co.,  4  Hurlst.  &  N.  598. 

«  Peyton  v.  Loudon,  9  B.  &  C.  725;  Napier  i;.  Bulwinkle,  5  Rich.  311.  Cf. 
Adams  v.  Marshall,  138  Mass.  228. 


340  INCORPOREAL    HEREDITAMENTS. 

Still,  the  owner  of  cither  house  in  that  situation  may  render 
himself  liable  to  the  owner  of  the  other  if  he  tear  down  his 
house  in  a  wasteful,  negligent,  or  improper  manner,  and  thereby 
injure  the  adjoining  one,  even  though  the  owner  of  the  latter 
omit  to  take  the  care  which  h6  might  have  exercised,  and  by 
which  he  might  have  avoided  the  consequences.^  But  if  the 
owner  of  the  building  to  be  removed  give  notice  to  the  other  of 
his  intention  to  take  it  down,  he  is  not  bound  to  exercise 
any  extraordinary  care  iii  securing  the  adjacent  building  from 
injury  thereby .^ 

§  1300.  Party-walls.  —  The  above  has  been  more  fully  noticed 
ill  order  to  distinguish  these  cases  from  those  of  party-ivalls,  so 
called,  which  form  an  important  subject  in  the  law  of  ease- 
ments. By  party-walls  are  understood  walls  between  two 
estates  which  are  used  for  the  common  benefit  of  both  ;  as,  for 
instance,  in  supporting  the  timbers  used  in  the  construction  of 
contiguous  houses  standing  thereon.  But  where  one  owner  set 
his  house  so  as  to  cover  a  portion  of  the  land  of  an  adjacent 
owner,  who  thereupon  erected  a  house  adjoining  this,  and 
entered  its  beams  into  this  wall  to  the  line  which  divided  the 
two  estates,  it  was  held  not  to  constitute  it  so  far  a  party-wall 
that  the  first  could  call  upon  the  other  to  pay  for  any  part  of 
it.  Having  placed  it  on  the  second  man's  land,  it  gave  him  a 
right  to  use  so  much  of  it  as  stood  upon  his  land,  unless  this 
was  done  by  some  agreement  between  them.^  Where  by  agree- 
ment between  two  adjacent  owners  of  lots,  that  one  might  erect 
a  wall  for  a  building  partly  on  his  lot,  and  partly  on  the  adjacent 
lot,  and  the  other  was  to  pay  for  half  the  wall  when  he,  his 
heirs  or  assigns,  should  build  on  his  lot,  and  use  it  as  a  party- 
wall,  it  was  held  to  be  a  personal  covenant,  and  did  not  bind 
the  assigns  of  the  one,  or  give  the  assigns  of  the  other  a  right 
to  recover  for  the  half  of  the  wall  when  occupied  by  the  erec- 
tion of  a  building.^     Building  a  wall  at  a  joint  expense  by  two 

1  Walters  r.  Pfeil,  Mood.  &  M.  362. 

2  Massey  v.  Goyder,  4  C.  &  P.  161.     See  cases,  Washb.  Ease.  (4th  ed.)  604. 

3  Orman  v.  Day,  5  Fla.  385  ;  Sherred  v.  Cisco,  4  Sandf.  480  ;  Bank  of  Escon- 
dido  V.  Thomas,  (Cal.)  41  Pac.  Rep.  462. 

*  Cole  V.  Hughes,  54  N.  Y.  444;  Scott  v.  McMillan,  76  N.  Y.  141  ;  Hart  v. 
Lyon,  90  N.  Y.  663.  Contra,  Keteltas  v.  Penfold,  4  E.  D.  Smith.  122  :  Picliard- 
son  V.  Tobey,  121  Mass.  457  ;  Brown  v.  Pentz,  1  Abb.  Dec.  227.     See;;os<,  §  1301. 


EASEMENTS.  341 

parties,  which  stands  one  half  upon  the  land  of  each,  does  not 
make  them  tenants  in  common  thereof.  Each  owns  his  part 
in  severalty,  though  each  has  a  right  to  use  the  wall  as  an 
easement.  But  if  one  sees  fit  to  carry  up  his  part  higher  than 
the  part  standing  upon  the  adjacent  land,  he  docs  not  thereby 
become  liable  to  the  owner  of  the  other  half  if  he  does  not 
injure  him  in  the  use  of  the  wall.^  If  a  wall,  erected  in  the 
manner  and  by  the  parties  above  supposed,  is  used  by  them  for 
twenty  years  for  the  purpose  of  supporting  their  respective 
buildings,  it  acquires  the  proper  character  of  a  party-wall.^ 
And  where  a  proper  party-wall  stands  one  half  upon  the  land 
of  each  of  the  adjoining  parties,  neither  can  underpin  his  half 
of  it  separately,  if  by  so  doing  he  injures  the  house  of  the  other. 
And  if  the  doing  it  in  that  way  was  an  act  of  carelessness,  the 
other  owner,  if  injured  thereby,  may  maintain  an  action  for 
the  injury.^ 

§  1301.  Party-walls,  continued.  —  It  does  not  seem  to  be  nec- 
essary that  a  party-wall  should  stand  half  upon  each  of  the 
adjoining  parcels  of  land.  It  may  stand  half  upon  each  or 
wholly  upon  one,  and  may,  or  may  not,  be  the  common  prop- 
erty of  the  two  proprietors.  The  rights  of  the  parties  in 
respect  to  the  same  may  be  collected  and  determined  from  the 
manner  in  which  the  parties  have  used  the  same  for  the  period 
of  time  requisite  to  create  a  prescriptive  right.*  The  rights 
of  adjoining  landowners  in  party -walls  in  cities  are  frequently 
defined  by  an  agreement  under  seal,  in  which  it  is  agreed 
between  the  owners  of  the  adjoining  lots,  their  heirs  and  as- 
signs, that  either  may  build  a  party-wall,  half  on  each  lot,  and 
that  the  wall  shall  remain  the  property  of  the  builder  until  the 
other  owner  uses  it  as  a  party-wall  and  pays  half  the  cost  of 
building.  Under  such  an  agreement  it  has  been  held  that  any 
subsequent  purchaser  of  the  vacant  lot  who  uses  the  wall  must 

1  Matts  V.  Hawkins,  5  Taunt.  20  ;  Dubois  v.  Beaver,  25  N.  Y.  127. 

2  Eno  V.  Del  Vecchio,  4  Duer,  53  ;  Dowling  v.  Hennings,  20  Md.  179. 

3  Bradlee  v.  Christ's  Hosp.,  4  Mann.  &  G.  761. 

4  Cubitt  u.  Porter,  8  B.  &  C.  257  ;  Wiltshire  v.  Sidford,  id.  259  ;  Schile  v. 
Brokhaus,  80  N.  Y.  614.  See  Washb.  Ease.  c.  4,  §  3 ;  4th  ed.  605.  The  subject 
o^  party-walls  is  fully  treated  of,  in  the  light  of  tlie  French  law,  in  Le  Page's  edition 
of  Desgodet's  Lois  des  Bdtiments,  c.  3,  §  2,  art.  1 ;  Mitrs  Mitoyens,  pp.  39--122  ;  Du- 
bois V.  Beaver,  supra ;  Dowling  v.  Hennings,  supra. 


342  INCORPOREAL   HEREDITAMENTS, 

pay  for  that  use,  whether  the  agreement  is  considered  a  cove- 
nant running  with  the  land  or  not.  If  it  is,  he  pays  under  the 
agreement ;  if  not,  he  pays  for  the  use  of  the  wall.^  The  pay- 
ment extinguishes  the  covenant,  and  it  seems  that  no  one  of 
the  former  owners  can  be  held  to  make  the  payment.^  The 
agreement  should  be  under  seal,  otherwise  the  half  of  the  wall 
standing  on  the  vacant  lot  will  belong  to  the  owner  of  that  lot, 
and  he  can  use  it  or  sell  it  without  paying  for  it.^  In  New 
York  it  has  been  held  that  if  an  oral  contract  is  made  between 
the  owners  of  two  adjoining  lots  to  build  a  party-wall,  and  one 
party  refuses  to  proceed  in  the  contract,  after  partial  comple- 
tion and  expense  incurred  by  the  other,  tlie  latter  may  recover 
half  the  agreed  price  in  equity,  not  for  the  breach  of  the  oral 
contract,  but  as  money  in  lieu  of  specific  performance.^  If 
there  is  no  agreement,  the  owner  of  land  who  builds  a  wall 
half  on  his  own  land  and  half  on  his  neighbor's  cannot  recover 
half  the  cost  from  his  neighbor  who  uses  the  wall ;  yet  if  "that 
neighbor  knew  that  the  one  who  built  the  wall  expected  to 
recover  half  the  cost  from  him,  and  allowed  him  to  proceed  in  ■ 
that  expectation,  and  afterwards  used  the  wall,  it  has  been  held 
that  he  must  contribute  half  the  cost.^  Under  such  an  agree- 
ment as  has  been  mentioned,  if  the  one  who  builds  the  wall 
builds  it  negligently,  and  perhaps  if  he  builds  it  with  proper 
care,  and  the  wall  falls  and  injures  buildings  on  the  other  lot, 
he  is  liable  in  damages.^ 

§  1302.  Easements  of  Part-owners  of  a  House.  —  Somewhat 
analogous  to  easements  in  party-walls  is  that  which  the  owner 
of  the  lower  half  of  a  dwelling-house  may  acquire  to  have  his 
part  protected  by  the  roof  over  the  upper  part.  The  upper 
part,  in  such  a  case,  becomes  servient  to  the  lower ;  but  the 
owner  of  the  latter  cannot  compel  the  owner  of  the  roof  to 
repair  it,  unless  he  has  gained  such  a  right  by  usage  or  grant. 
But  he  may  himself  enter  upon  and  repair  it  when  necessary.'' 

1  Richardson  v.  Tobey,  121  Mass.  457. 
-  Standish  v.  Lawrence,  111  Mass.  111. 
^  Toy  V.  Boston  Penny  Savings  P>ank,  115  Mass.  60. 
*  Rindge  v.  Baker,  57  N.  Y.  209. 
6  Day  V.  Caton,  119  Mass.  513. 

«  Gorham  v.  Gross,  125  Mass.  232.     Cf.  Schile  v.  Brokhaus,  80  N.  Y.  614. 
^  Pom  fret  v.  Ricroft,  1  Wms.  Saund.  557,  n.  1  ;  Tud.  Lead.  Cas.  127  ;  3d  ed. 
-19. 


EASEMENTS.  343 

But  while  the  Scotch  and  French  laws  are  full  and  minute  in 
prescribing  the  relative  rights  and  duties  of  the  owners  of  dis- 
tinct parts  of  the  same  house,  the  common  law  is  singularly  de- 
fective in  this  respect.  That  there  may  be  separate  freeholds  in 
different  portions  of  the  same  house  has  already  been  stated. 
And  it  is  well  settled  that  the  owner  of  any  one  part  has  no 
right  to  do  anything  which  shall  impair  or  cause  an  injury  to 
the  other  part  or  parts  of  such  house. ^  But  this  does  not  meet 
the  question  what  the  owner  of  one  part  is  bound  to  do  in  the 
way  of  repairing  his  own  premises  if,  without  his  act,  they 
become  damaged  or  decayed.  In  one  case,  Kent,  Ch.,  was 
inclined  to  adopt  in  equity  the  French  law,  by  which  the  walls 
of  the  house,  or  any  other  parts  which  are  of  common  use  and 
benefit  to  the  entire  structure,  are  the  subjects  of  a  common 
charge  for  repair  to  all  the  owners.^  And  in  a  case  in  Massa- 
chusetts, the  court,  in  speaking  of  co-tenants  of  a  house  suffer- 
ing it  to  go  to  decay,  say  :  "  Neither  can  complain  of  the  other 
until  after  request  and  refusal  to  join  in  making  repairs."  ^  In 
another  case  in  the  same  court.  Parsons,  C.  J.,  refers  to  a  case 
from  Keilwey  which  implied  an  obligation  on  the  part  of  the 
owner  of  the  lower  part  to  repair  the  timbers  of  that  part. 
But  Lord  Holt  doubted  the  law.*  It  was  intimated  by  the 
same  judge  (Parsons)  that  a  writ  de  domo  reparanda  would  lie 
in  favor  of  one  of  the  owners  against  the  other.  But  the  court 
of  Connecticut  held  that  no  action  at  law  would  lie  in  favor  of 
one  of  such  owners  against  the  other  —  the  owner  of  the  lower 
story,  for  instance,  against  the  owner  of  the  upper  one  —  for 
not  repairing  the  roof,  and  that  his  only  remedy  would  be  in 
equity.^  There  is  a  decision,  however,  in  Modern  Reports 
which  holds  that  in  such  a  case  the  owner  of  the  lower  room 
may  have  an  action  against  the  owner  above  to  compel  him  to 
repair  his  roof,  or  the  owner  above  against  tlie  one  below  to 
compel  him  to  maintain  his  foundation.^    So  that  the  limit  and 

1  Harris  v.  Rydiiig,  5  M.  &  W.  60,  76  ;  Dugdale  v.  Robertson,  3  Kay  &  J.  700. 
-  Campbell  v.  Mesiev,  4  Johns.  Ch.  334.  Cf.  Antoniarchi  v.  Russell,  63  Ala.  356. 
3  Doane  v.  Badger,  12  Mass.  65,  70. 

*  Loring  v.  Bacon,  4  Mass.  575 ;    Keilwey,   98  b,  pi.  4  ;  Tenant  v.  Goldwin, 
6  Mod.  811  ;  s.  c.  2  Ld.  Raym.  1089,  1093. 
5  Clieeseborough  v.  Green,  10  Conn.  318. 
'^  Anon.,  U  Mod.  7. 


344  INCORPOREAL    HEREDITAMENTS. 

extent  of  these  reciprocal  rights  and  liabilities  may  be  regarded 
as  yet  undefined  by  the  common  law.  The  more  modern  cases 
seem  to  go  to  confirm  the  doctrine,  that  there  is  no  remedy  at 
common  law  for  the  owner  of  one  part  of  a  house  to  recover  of 
the  owner  of  another  part  of  it  for  repairs  made  for  him  upon 
his  part,  though  the  other  part  is  thereby  benefited.  This  was 
held  in  case  of  tenants  in  common.^  So  where  the  house  con- 
sisted of  two  tenements  adjacent  to  each  other.^  So  where  one 
owns  an  upper  story,  and  repairs  the  roof.^  But  if  the  subject 
of  property  be  owned  in  common,  and  cannot  be  divided,  and 
one  make  necessary  repairs  after  requesting  the  other  to  join  in 
making  them,  and  he  neglects  or  refuses  to  do  so,  it  seems  that 
he  may  call  on  his  co-tenant  for  contribution.* 

§  1303.  Easement  to  carry  on  Offensive  Trade.  —  One  may 
acquire,  as  against  his  neighbor,  a  right  to  carry  on  a  noisome 
and  offensive  trade  upon  his  own  premises  by  having  exercised 
the  right,  without  objection,  for  the  term  of  at  least  twenty 
years.^ 

§  1304.  Easement  of  Fishery.  — ■  A  several  or  exclusive  right 
of  fishery  in  the  estate  of  another  may  be  acquired  by  an  ad- 
verse, uninterrupted,  and  exclusive  use  and  enjoyment  of  the 
same  for  more  than  twenty  years,^  unless  when  the  use  began 
the  owner  were  a  minor,  in  which  case  no  prescriptive  right 
can  be  gained  but  by  twenty  years'  enjoyment  after  he  shall 
have  become  of  age.  And  the  same  is  true  if  the  owner  were 
insane.'  And  if  the  use  began  in  the  life  of  a  father,  his  death, 
and  the  descent  of  the  estate  upon  his  minor  heir,  will  sus[)cnd 

1  Calvert  v.  Aldrich,  99  Mass.  74. 

2  Pierce  v.  Dyer,  109  Mass.  374. 

3  Ottumwa  Lodge  v.  Lewis,  34  Iowa,  67  ;  Cheeseborough  v.  Green,  10  Conn. 
318  ;  Graves  i:  Berdan,  26  N.  Y.  501  ;  McCormick  v.  Bishop,  28  Iowa,  233,  239, 
240. 

*  Mumford  v.  Brown,  6  Cow.  475  ;  Coffin  v.  Heath,  6  Met.  80  ;  Wa.shb.  Ease. 
(4th  ed.)  643-647.  In  Leigh  v.  Dickeson,  12  Q.  B.  D.  194,  this  is  limited  to  such 
repairs  as  are  necessary  to  prevent  destruction  or  decay,  and  not  to  ordinary 
repairs. 

5  Elliotson  V.  Feetham,  2  Bing.  N.  C.  134  ;  Dana  v.  Valentine,  5  Met.  8.  But 
not  against  the  public.     Ante,  §  1285,  n. 

6  Tinicum  Fishing  Co.  v.  Carter,  61  Penn.  St.  29  ;  Hart  v.  Hill,  1  Whart.  138  ; 
Beckman  v.  Kreamer,  43  111.  448.  Or  by  grant.  Matthews  v.  Treat,  75  Me.  594  ; 
Wyman  v.  Oliver,  id.  421. 

"<  Edson  V.  JIunsell,  10  Allen,  557. 


EASEMENTS.  345 

the  cacquisition  of  the  prescriptive  right  during  such  minority. 
But  if  the  enjoyment  is  continuous,  and  the  periods  during  the 
life  of  the  ancestor,  and  after  the  heir  arrives  at  age,  added 
together,  will  make  an  aggregate  period  of  twenty  years,  it  will 
be  sufficient.!  jv^q  easement  of  fishery  in  public  rivers  can  be 
gained  by  prescriptive  user  against  the  State,  no  matter  how 
long  it  may  have  continued.^  [Nor  can  one  prescribe  for  a 
several  fishery  in  the  estate  of  another  without  alleging  some 
estate  of  freehold  in  himself.^] 

§  1305.  Easement  of  Division  Fence. — A  right  in  the  nature 
of  an  easement  may  arise  by  grant  or  prescription  in  favor  of 
the  owner  of  one  parcel  of  land  to  have  the  occupant  of  an 
adjacent  parcel  make  and  maintain  a  fence  upon  the  dividing- 
line  between  the  parcels.  Such  right  would  of  course  be  ex- 
tinguished if  the  same  person  were  to  become  the  sole  owner 
of  both  parcels.*  But  if  the  estates  were  sold  in  parcels  to  dif- 
ferent purchasers,  the  burden  or  benefit,  as  the  case  might  be, 
would  pass  with  the  parcels  of  the  respective  estates,  as  some- 
thing charged  upon,  or  appurtenant  to,  the  same.^  The  party, 
however,  who  was  bound  to  maintain  the  fence  would  not  be 
liable  for  damage  occasioned  by  cattle,  from  want  of  or  defect 
in  such  fence,  unless  they  had  been  rightfully  upon  the  adja- 
cent land.^ 

§  1306.  Right  to  maintain  Wharf. — Where  one  erected  a 
wharf  below  low-water  mark,  and  enjoyed  the  use  of  it  long 
enough  to  acquire  a  prescriptive  right  to  maintain  it  there,  the 
right  was  held  to  be  limited  to  the  mere  maintenance  of  the 
wharf  itself,  and  did  not  extend  beyond  the  land  covered  by 

1  Melvin  v.  Whiting,  13  Pick.  184.     See  Hargr.  Law  Tracts,  5. 

•^  State  V.  Franklin  Falls  Co.,  49  N.  H.  240,  254 ;  State  v.  Roberts,  59  N.  H. 
256,  257  ;  Tinicum  F.  Co.  v.  Carter,  61  Penn.  St.  36.  And  see  Lincoln  v.  Davis, 
53  Mich.  275.  Nor  against  the  right  of  navigation  by  the  public.  McCready  v. 
Virginia,  94  U.  S.  391  ;  Cobb  v.  Bennett,  75  Penn.  St.  326. 

a  Beach  v.  Morgan,  67  N.  H.  529  ;  s.  c.  41  Atl.  Ptep.  349. 

*  Boyle  V.  Tamlyn,  6  B.  &  C.  329  ;  Rust  v.  Low,  6  Mass.  90,  97  ;  Binney  i'. 
Hull,  5  Pick.  503  ;  Adams  v.  Van  Alstyne,  25  N.  Y.  232.  Such  fence,  it  seems, 
may  be  placed  one-half  upon  the  land  of  each  conterminous  owner,  if  there  is  no 
prescription  to  the  contrary.  Sparhawk  v.  Twichell,  1  Allen,  450  ;  Duffy  v.  N.  Y. 
&  Harlem  R.  R.  Co.,  2  Hilton,  496  ;  Harlow  v.  Stinson,  60  Me.  349  ;  Brouson  v. 
Coffin,  108  Mass.  175. 

6  Adams  v.  Van  Alstyne,  25  N.  Y.  232,  235. 

6  Pool  V.  Alger,  11  Gray,  489. 


846  INCORPOREAL  HEREDITAMENTS. 

the  wharf,  so  as  to  give  him  the  easement  of  wharfage  for  ves- 
sels adjacent  to  the  same.^  But  the  owner  of  land  bounded 
upon  the  sea  may,  it  seems,  build  a  wharf  adjoining  his  land, 
and  enjoy  it  as  his  own  property,  if  he  do  not  thereby  inter- 
"i'-  fere  with  the  free  navigation  by  the  public.^  This  right  of  a 
riparian  owner  to  construct  a  wharf  adjoining  his  land  and 
extending  it  beyond  low-water  mark,  so  far  as  it  applies  to 
Lake  Champlain,  is  denied  by  the  court  of  Vermont,^  and  by 
the  Illinois  court  as  to  Lake  Michigan.*  So  a  question  has 
been  made  how  far  access  to  tidal  water  by  the  owners  of  land 
adjoining  the  same  is  so  much  of  an  incident  of  ownership 
thereof  as  to  entitle  them  to  damages  if  they  are  deprived 
thereof  by  means  of  an  embankment,  like  a  railroad  con- 
structed by  legislative  authority  along  in  front  of  such  lands, 
but  not  actually  occupying  any  part  thereof.  The  weight  of 
opinion  in  the  leading  English  case^  appears  to  be  in  favor  of 
such  a  claim.  But  in  the  American  cases  cited  below  the  doc- 
trine is  denied,  unless  some  part  of  the  land  of  such  owner  is 
appropriated  in  the  construction  of  such  embankment.^  But 
if  one  without  right  extend  his  wharf  beyond  low-water  mark 
into  navigable  waters,  it  does  not  give  a  right  to  any  other 
person  to  enter  upon  and  use  the  same.'^ 

§  1307.  Easements  acquired  by  Custom.  —  There  is  a  claSS  of 
cases  where  it  is  difficult  to  determine  whether  the  right 
claimed  is  an  easement  belonging  to  a  person  as  the  owner  or 
occupant  of  some  particular  estate,  or  is  one  which  he  is  at 
liberty  to  avail  himself  of  as  a  customary  right,  to  which  the 
residents  of  a  particular  town  or  locality  are  entitled.  In  some 
instances,  as  in  the  case  of  a  way,  a  landing-place,  and  the 
like,  the  same  individual  can  prescribe  for  its  use  both  as  an 
easement  belonging  to  his  estate  and  as  a  customary  right  by 

1  Gray  v.  Bartlett,  20  Pick.  186. 

2  Burrows  v.  Gallup,  32  Conn.  493,  501  ;  Yates  v.  Milwaukee,  10  AVall.  497  ; 
Watson  V.  Peters,  26  Mich.  508,  51" ;  Weber  v.  Harbor  Comm'rs..  18  Wall.  57,  64. 

«  Austin  V.  Kutland,  etc.  R.  R.  Co.,  45  Vt.  215. 
*  Revcll  V.  People,  177  111.  468  ;  s.  c.  52  N.  E.  Rep.  1052. 
6  Buccleuch  v.  Metrop.  Board,  L.  R.  5  H.  of  L.  438. 

6  Stevens  v.  Patersoii,  etc.  R.  R.,  34  N.  J.  532  ;  Gould  v.  Huds.  Riv.  R.  R., 
6  N.  Y.  522 ;  Tomlin  v.  Dubuque,  etc.  R.  R.,  32  Iowa,  106. 
'  Wetmore  v.  Brooklyn  Gas  Co.,  42  N.  Y.  384. 


EASEMENTS.  347 

reason  of  his  residence.^  Whether,  therefore,  the  right  claimed 
depends  upon  custom  or  prescription,  must  be  referred  to  the 
circumstances  whether  it  is  a  local  usage  or  a  personal  claim, 
or  a  claim  dependent  upon  a  particular  estate.  If  the  claim  is 
a  customary  one,  it  may  be  sustained  if  it  be  an  easement  only 
in  alieno  solo,  as  for  a  way,  to  take  water  from  a  spring,  for 
liberty  to  play  at  rural  sports,  to  draw  nets  on  another's 
land,  to  pass  free  of  toll,  for  a  public  landing-place,  and  the 
like.2 

§  1308.  No  Customary  Rights  of  Common.  —  But  a  customary 
right  to  take  profits  in  another's  land,  such  as  taking  away 
gravel  or  sand  for  building,  and  the  like,  cannot  be  acquired  in 
favor  of  the  residents  in  any  particular  town  or  locality,  though 
it  may  be  by  grant  or  prescription  in  favor  of  an  individual  as 
attached  to  a  particular  estate,  or  of  a  body  politic  and  its  suc- 
cessors.2  But  for  a  body  politic,  like  a  town,  to  acquire  a  pre- 
scriptive right,  requires  that  the  acts  by  which  it  is  claimed  to 
have  been  done  should  be  corporate  acts,  and  prescribed  for  in 
a  que  estate;  since  the  acts  of  individuals,  unless  done  by 
authority  of  the  town,  will  not  be  sufficient.^  A  prescriptive 
right  to  take  profits  in  another's  land  must,  however,  be  for 
specific  purposes,  and  limited  in  extent.  Thus,  where  one 
owning  a  brick-kiln  claimed  a  right  to  dig  in  another's  land  so 
much  clay  as  he  had  occasion  for  using  at  his  kiln,  and  had 
enjoyed  it  thirty  years,  it  was  held  to  be  a  bad  prescription, 

1  Perley  v.  Langley,  7  N.  H.  233;  Kent  v.  Waite,  10  Pick.  138,  142  ;  2  Steph. 
Com.  (1st  Am.  ed.)  34. 

'•!  Perley  v.  Langley,  7  N.  H.  233  ;  Coolidge  v.  Learned,  8  Pick.  503,  505  ; 
2  Steph.  Com.  (1st  Am.  ed.)  34  ;  Race  v.  Ward,  4  E.  &  B.  702. 

3  Perley  v.  Langley,  7  TST.  11.  233  ;  Merwin  v.  Wheeler,  41  Conn.  14  ;  3  Dane, 
Abr.  21,  248  ;  Thomas  v.  Marshfield,  10  Pick.  364  ;  Sale  v.  Pratt,  19  Pick.  191, 
197;  Green  v.  Putnam,  8  Cush.  21  ;  Commonwealth  v.  Low,  3  Pick.  408,  413  ; 
Bost.  Water  Pow.  Co.  v.  Bost.  &  Wore.  R.  R.  Co.,  16  Pick.  512  ;  Blewett  v. 
Tregonning,  3  Ad.  &  E.  554 ;  Race  v.  Ward,  4  E.  &  B.  702  ;  Waters  v.  Lilley, 
4  Pick.  145  ;  Bland?;.  Lipscombe,  4  E.  &  B.  714,  n.;  Washb.  Ease.  (4th  ed.)  139  ; 
De  la  Warr  v.  Miles,  17  Ch.  Div.  535  ;  Neill  v.  Devonshire,  L.  R.  8  App.  Cas.  135, 
154.  And  see  ante,  §  1227.  A  crown  grant  to  "  inhabitants  "  of  a  profit  A  ]?rendre 
to  cut  wood  in  a  royal  forest  is  good.  Willingale  v.  Maitland,  L.  R.  3  Eq.  103.  And 
where  the  right  to  the  profit  is  claimed  by  inhabitants  under  a  grant  to  the  cor- 
poration, it  will  be  good  as  a  trust.    Goodman  v.  Saltash,  L.  R.  7  App.  Cas.  633. 

*  Green  r.  Chelsea,  24  Pick.  71,  79  ;  Wa-shb.  Ease.  (4th  ed.)  142-144;  Nudd  v. 
Hobbs,  17  N.  H.  525. 


348  INCORPOREAL    HEREDITAMENTS. 

since  it  might  extend  to  carrying  off  the  entire  parcel  of  the 
other's  land.^ 

§  1309.  Remedies  for  Obstructions  to  Easements.  —  If  the 
owner  of  the  servient  estate  do  anything  to  obstruct,  interfere 
with,  or  impair  the  enjoyment  of  an  easement  therein,  the 
owner  of  the  dominant  estate  may  maintain  an  action  therefor, 
even  though  he  may  not  be  able  to  prove  any  injury  and  actual 
damage  to  have  been  occasioned  thereby ;  because  a  repetition 
of  such  acts  might  in  time  ripen  into  an  adverse  right.  The 
law  in  such  cases  will  presume  a  damage,  in  order  to  enable  the 
party  to  vindicate  his  right.^     Or  the  owner  of  the  dominant 

1  Clayton  v.  Corby,  5  Q.  B.  415  ;  Wilson  v.  Willes,  7  East,  121.  And  see  Good- 
man V.  Saltash,  L.  R.  7  App.  Cas.  633,  646. 

2  Atkins  V.  Bordman,  2  Met.  457,  469  ;  Nicklin  v.  Williams,  10  Exch.  259  ; 
Webb  V.  Portland  Co.,  3  Sumn.  189  ;  BlodgRtt  v.  Stone,  60  N.  H.  167  ;  Creighton 
V.  Evans,  53  Cal.  55  ;  Wiley  v.  Hunter,  1  East.  Rep.  228.  Bower  v.  Hill,  1  Bing. 
N.  C.  549,  where  the  defendant  was  held  liable  for  building  over  a  channel  through 
which  the  plaintiff  had  a  water-way,  although  at  the  time  it  was  choked  up  and 
impassable.  Bolivar  Mg.  Co.  v.  Neponset  Mg.  Co.,  16  Pick.  241;  Bliss  v.  Rice, 
17  Pick.  23.  "  It  is  sufficient  to  show  a  violation  of  a  right."  Embrey  v.  Owen, 
6  Exch.  353  ;  Ashby  v.  White,  2  Ld.  Eaym.  938  ;  Stowell  v.  Lincoln,  11  Gray, 
434,  435  ;  Fitzpatrick  v.  Boston  &  M.  R.  R.,  84  Me.  33  ;  s.  c.  24  Atl.  Rep.  432. 
If  actual  damages  are  inflicted,  the  measure  is  the  injury  done  by  the  act  complained 
of.  Gilmore  v.  DrLscoll,  122  Mass.  199  ;  Johnson  v.  Arnold,  91  Ga.  659  ;  s.  c.  18 
S.  E.  Rep.  370.  If  injury  is  caused  to  the  plaintiff's  business,  he  may  recover  for 
that,  but  not  for  estimated  future  profits.  Shafer  v.  Wilson,  44  Md.  280.  Cf. 
Schile  V.  Brokhaus,  80  N.  Y.  614.  In  an  action  for  fouling  a  stream,  the  plaintiff 
may  recover  a  sum  whicb  will  compensate  him  for  actual  loss  suffered  from  the 
resulting  uselessness  of  his  water-works,  erected  by  him  for  using  the  water  of  the 
stream  for  domestic  and  other  purposes.  Sanderson  v.  Penn.  Coal  Co.,  102  Penn. 
St.  370  ;  and  also  the  value  of  the  house  of  the  superintendent  of  the  water-works, 
and  leases  of  land  taken  for  the  erection  of  the  works.  Schuylkill  Nav.,  etc.  Co.  v. 
French,  81*  Penn.  St.  366.  But  the  damages  should  not  include  an  estimated 
amount  of  future  injury,  for  the  defendant  may  stop  the  nuisance.  San<lerson 
V.  Penn.  Coal  Co.,  siipra;  Bare  v.  Hoffman,  79  Penn.  St.  71.  If  a  stream  was  used 
for  irrigation,  the  loss  of  crops  may  be  included.  Ellis  v.  Tone,  58  Cal.  289. 
Cf.  Hanover  Water  Co.  v.  Ashland  Iron  Co.,  84  Penn.  St.  279.  In  those  States 
where  exemplary  or  punitive  damages  are  allowed  by  law,  such  damages  may  be 
recovered  in  actions  for  the  infringement  of  easements,  if  the  act  of  the  defendant 
is  proved  to  have  been  wanton  or  malicious.  Hughes  v.  Anderson,  68  Ala.  280  ; 
Burnham  v.  Jenness,  54  Vt.  272.  It  seems  to  be  a  question  whether  the  owner  of 
land  can  recover  damages  for  injury  to  his  feelings,  in  addition  to  damages  to  the 
land,  if  the  act  of  the  defendant  was  wanton  or  maliciou.s,  in  States  where  punitive 
damages  are  not  allowed.  White  v.  Dresser,  135  Mass.  150.  Cf.  Oursler  v.  Bait. 
&  0.  R.  R.  Co.,  60  Md.  358.  In  mitigation  of  damages,  the  defendant  may  show 
any  fact  which  decreases  the  actual  damage  suffered  by  the  plaintiff;  e.  g.  in  an 


EASEMENTS.  349 

estate  may  enter  upon  the  servient  estate  and  remove  any  ob- 
structions wrongfully  placed  there  to  the  detriment  of  his  ease- 
ment in  the  same.  If  these  are  created  by  the  owner  of  the 
servient  tenement,  the  one  entitled  to  the  easement  may  make 
such  entry  without  any  previous  request  to  have  them  removed. 
But  if  erected  by  a  strang;cr,  or  by  the  grantor  of  the  owner  of 
the  servient  estate,  it  seems  that  there  should  be  a  prior  re- 
quest. So  if  the  effect  of  an  act  done  on  the  servient  estate 
will  be  to  create  a  nuisance,  the  owner  of  the  dominant  estate 
need  not  wait  till  some  actual  injury  has  been  suffered.  And 
he  may,  moreover,  where  his  title  is  clear,  have  an  injunction 
to  restrain  a  nuisance  to  the  enjoyment  of  his  easement.^ 

8  1310.  An  Easement  may  be  destroyed  or  determined  in  Vari- 
ous Ways.  —  It  may  be  released  by  the  owner  of  the  dominant 
to  the  one  who  owns  the  servient  estate.  So  it  may  be  extin- 
quished  or  lost  by  being  abandoned.^     Thus,  where  one,  who 

action  for  obstructing  a  way  leading  to  the  plaintiff's  house,  tlie  defendant  may 
show  that  there  were  other  means  of  access  to  the  house.  Demuth  v.  Aniweg,  90 
Penn.  St.  181. 

1  Tiul.  Lead.  Cas.  129;  3d  ed.  224  ;  Penruddock's  case,  5  Rep.  100  6;  Nichols 
V.  Wentworth,  2  East.  Rep.  910  ;  Shaetfer's  App.,  100  Penn,  St.  379  ;  (Collins  v.  St. 
Peters,  65  Vt.  618 ;  s.  c.  27  Atl.  Rep.  425  ;  Elliott  v.  Rhett,  5  Rich.  405  ;  s.  c.  57 
Am.  Dec.  750  ;  Lord  v.  Carbon  Iron  Man.  Co,  38  N.  J.  Eq.  452  ;  Cox  v.  Leviston, 
1  East.  Rep.  339  ;  Fuller  v.  Daniels,  id.  498.  Or  to  enjoin  a  threatened  injury. 
Hicks  V.  Silliman,  93  111.  255 ;  Lockwood  Co.  v.  Lawrence,  1  East.  Rep.  403  ; 
Davis  V.  Londgreen,  8  Neb.  43.  If  the  threatened  damage  is  likely  to  be  slight, 
the  court  will  not  enjoin,  but  leave  the  owner  of  the  easement  to  proceed  at  law. 
McMaugh  V.  Burke,  12  R.  I.  499.  In  a  case  in  Maine,  where  the  injury  was  a  tem- 
porary diversion  by  the  defendants  of  moi-e  water  from  a  stream  than  they  were 
entitled  to  use,  thus  depriving  the  plaintiffs  of  sufficient  water  to  run  their  mill, 
the  court  held  that  as  the  injury  was  a  temporary  invasion  of  the  jilaintiffs'  right, 
and  not  likely  to  be  continued,  and  not  of  an  irre]>arable  character,  the  case  did  not 
call  for  the  interposition  of  a  court  of  equity,  and  that  if  the  defendants  claimed 
to  be  entitled  to  that  amount  of  water,  the  right  should  be  tried  in  an  action  at 
law  before  an  application  is  made  for  an  injunction.  Westbrook  Man.  Co.  v.  War- 
ren, 1  East.  Rep.  608.  In  Lockwood  Co.  v.  Lawrence,  supra,  it  was  held  that  an 
injunction  would  be  granted  without  first  establishing  the  right  at  law  where  the 
injury  is  irreparable  ;  e.  g.  where  riparian  proprietors  deposit  refuse  material  from 
their  saw-mills  in  the  stream.  It  has  been  held  that  if  the  threatened  injury  is  to 
be  done  under  an  existing  legislative  grant,  as  where  a  corporation  is  proceeding, 
under  its  charter,  to  erect  locks  in  a  river,  a  court  of  equity  will  not  restrain  its 
proceeding,  although  the  corporation  has  not  acted  under  the  charter  for  more  than 
twenty-five  years.     Ottaquechee  Co.  j».  Newton,  2  East,  Rep.  222. 

2  Tad.  Lead.  Cas.  (3d  ed.)  230  ;  Washb.  Ease.  c.  5,  §  5  ;  4th  ed.  p.  707;  Canny 
V.  Andrews,  123  Mass.  155;  Steere  v.  Tiffany,  13  P.  I.  568;  Vogler  v.  Geiss, 
51  Md.  407;  Dikes  v.  Miller,  24  Tex.  417,  424. 


3o0  INCORPOREAL    HEREDITAMENTS. 

had  acquired  an  easement  of  light  and  air  for  a  certain  window 
in  his  house,  walled  up  the  window,  and  kept  it  so  for  seven- 
teen years,  during  which  time  the  owner  of  the  adjacent  lot 
built  thereon,  and  the  original  owner  subsequently  opened  his 
window  again,  it  was  lield  that  he  had  by  his  first  act  aban-  ■ 
doned  and  lost  the  easement,  and  could  not  require  the  adjacent 
owner  to  remove  the  obstruction.  Upon  an  actual  suspension 
of  the  use,  if  he  intends  to  retain  the  right,  he  ought  to  do 
some  act  to  indicate  this  intention.^  The  question  of  abandon- 
ment is,  however,  one  for  the  jury  ;  and  in  order  to  have  a 
mere  non-user  by  the  owner  of  a  dominant  estate  for  less  than 
twenty  years  operate  as  an  abandonment,  he  must  have  done 
such  acts  as  reasonably  led  the  adjacent  owner  to  believe  he 
had  abandoned  the  easement,  who  must  thereby  have  been  led 
to  incur  expense  upon  his  own  estate,  acting  upon  such  belief.^ 
§  1311.  Mere  Non-user  insufficient.  — But  a  mere  non-user 
for  less  than  twenty  years  will  not  in  any  case  operate  as  an 
abandonment  of  an  easement,  though  originally  acquired  by 
user.3  And  where  it  has  been  created  by  express  grant,  no 
length  of  non-user  will  in  most,  if  not  all,  cases  operate  as  an 
abandonment  where  there  have  been  no  hostile  or  adverse  acts 
done  by  the  owner  of  the  servient  estate  during  that  time,  ex- 
tinguishing such  right  and  creating  an  adverse  prescription.* 

1  Moore  v.  Eavvson,  3  B.  &  C.  332;  Dyer  v.  Sanford,  9  Met.  395,  402  ;  Manning 
V.  Smith,  6  Conn.  289. 

2  White's  Bank  v.  Nichols,  64  N.  Y.  65  ;  Parkins  v.  Dunham,  3  Strobh.  224 ; 
Stokoe  V.  Singers,  8  E.  &  B.  31,  where  stopping  vvindow.s  on  the  inside  for  nineteen 
years  was  held  not  to  abandon  the  easement.  But  it  seems  a  bona  fide  purcliaser  of 
adjacent  land  will  be  protected  in  the  enjoyment  of  the  property  as  it  appears  at 
the  time  of  his  purchase.  Corning  v.  Gould,  16  Wend.  531.  Even  a  public  ease- 
ment in  a  highway  is  liable  to  be  lost  by  non-user  ;  but  an  encroachment  upon  a 
highway,  if  of  less  duration  than  the  period  of  statutory  prescription,  will  not  de- 
stroy the  easement.  Fox  v.  Hart,  11  Ohio,  416  ;  Davies  v.  Huebner,  45  Iowa,  574. 
Contra,  although  continued  more  than  the  statutory  period,  St.  Vincent  Or|)han 
Asylum  v.  Troy,  76  N.  Y.  108,  and  cases  there  cited.  See  State  v.  Alstead,  18  N.  H. 
6n";  Holt  v.  Sargeant,  15  Gray,  102  ;  Smyles  v.  Hastings,  22  N.  Y.  224  ;  State  v. 
Culver,  65  Mo.  607. 

8  Williams  v.  Nelson,  23  Pick.  141  ;  Hatch  v.  Dwight,  17  Mass.  289  ;  Emerson 
V.  Wiley,  10  Pick.  310  ;  White  v.  Crawford,  10  Mass.  183  ;  Parkins  v.  Dunham, 
3  Strobh.  224  ;  Ersk.  Inst.  371  ;  Ward  v.  Ward,  7  Exch.  838  ;  Wilder  v.  St.  Paul, 
12  Minn.  192  ;  Pratt  v.  Sweetser,  68  Me.  344  ;    Steere  v.  Tiffany,  13  R.  I.  568. 

*  Jewett  V.  Jewett,  16  Barb.  150,  which  was  a  case  of  a  watercourse  ;  Ang.  Wat. 
Cour.  §  252  ;    Lindeman  i;.  Lindsay,  69  Peuu.  St.   100 ;   Erb  v.  Brown,  id.  21G  ; 


EASEMENTS.  351 

§1312.  Acts  which  work  Abandonment. — There  are,  how- 
ever, acts  which,  if  done  by  the  party  entitled  to  the  easement, 
and  found  to  be  done  with  an  intent  to  abandon  the  same,  will 
have  that  effect.  Thus,  if  a  mill-owner  tears  down  his  mill, 
with  an  intent  not  to  occupy  the  privilege  again,  he  leaves  it 
open  to  any  one  below  or  above  to  occupy.  Or  if  he  do  any 
acts  indicating  an  abandonment,  accompanied  by  a  declaration 
of  the  intention  with  which  it  is  done,  it  will  operate  an  extin- 
guishment of  the  right,  especially  if  others  are  thereby  led  to 
incur  expense  in  occupying  it.  And  the  mere  suffering  a  dam 
and  mill  which  had  been  in  part  washed  away  to  remain  in 
that  condition  for  twenty  years  has  been  deemed  to  be  an 
abandonment.^  But,  as  already  stated,  while  an  abandonment 
must  be  effected  by  some  act,  and  a  mere  declaration  of  an  in- 
tention to  abandon  will  not  be  sufficient,  whether  the  act  shall 
amount  to  an  abandonment  or  not,  depends  upon  the  intention 
with  wliich  it  is  done.  Thus,  where  one  had  an  ancient  pond 
and  a  flow  of  water  to  it,  and  dug  three  other  ponds  and  took 
the  water  to  them,  suffering  the  first  to  become  filled  with 
rubbish,  and  it  turned  out  that  he  had  not  good  title  to  the 
land  on  which  the  last-mentioned  ponds  were  dug,  it  was  held, 
that  he  had  a  right  to  resume  the  occupation  of  the  first,  and 
to  make  use  of  the  water  for  that  purpose.^ 

§  1313.  Easement  destroyed  by  Executed  License.  —  So  an 
easement  may  be  abandoned  or  suspended  by  a  license  to  the 
owner  of  the  servient  estate  to  do  acts  upon  his  own  estate 
which  operate  perpetually  to  destroy  or  temporarily  to  suspend 
the  easement,  if  he  executes  this  license ;  for  such  a  license, 
when  executed,  is  irrevocable.     Thus,  if  one,  having  an  ease.- 

Bombaugli  v.  Miller,  82  Penn.  St.  203  ;  Day  v.  Walden,  46  Mich.  575  ;  Kiehle  v. 
Heulings,  38  N.  J.  Eq.  20  ;  White  v.  Crawford,  10  Mass.  183  ;  Chandler  v.  Jam. 
Pond.  Aqned.  Co.,  125  Mass.  544  ;  Welsh  v.  Taylor,  134  N.  Y.  450  ;  s.  c.  31  N.  E. 
Rep.  896  ;  s.  c.  18  L.  R.  A.  535  ;  Arnold  v.  Stevens,  24  Pick.  106,  a  case  where  a 
right  to  dig  mines  was  held  not  to  be  lost  by  forty  years'  non-user ;  Smiles  v.  Hast- 
ings, 24  Barb.  44  ;  s.  c.  22  N.  Y.  224;  Bannon  v.  Angier,  2  Allen,  128  ;  Jenuison 
V.  Walker,  11  Gray,  423.  But  non-user  for  more  than  twenty  years,  united  with 
an  adverse  use  of  the  servient  estate  inconsistent  with  the  existence  of  the  ease- 
ment, will  extinguish  it.     Smith  v.  Langewald,  140  Mass.  205. 

1  Liggins  V.  Inge,  7  Ring.  682,  690,  by  Tindal,  J.  ;  French  v.  Braintree  Mg.  Co., 
23  Pick.  216  ;    Hatch  v.  D wight,  17  Mass.   289. 

'■^  Hale  i;.  Oldroyd,  14  M.  &  W.  789  ;  Dyer  v.  Sanford,  9  Met.  395. 


352  INCORPOREAL    HEREDITAMENTS. 

merit  of  light  and  air  over  another's  land,  authorizes  him  to 
erect  a  wall,  which  he  does,  and  thereby  obstructs  the  enjoy- 
ment of  these,  the  easement  will  be  lost,  as  long  as  the  wall 
stands,  as  he  cannot  revoke  a  license  executed  upon  the  licen- 
see's own  land.  ^ 

§  1314.  Change  of  Use  evidencing  Abandonment.  —  So  the 
owner  of  an  estate  may  destroy  an  easement  belonging  to  it, 
if  he  so  alters  his  estate  as  materially  to  increase  the  burden 
upon  the  servient  estate,  especially  if  the  easement  is  of  a 
nature  not  divisible,  and  the  increase  cannot  be  separated  from 
the  original  servitude.  If  it  can  be  thus  separated,  tlie  original 
may  remain  unimpaired.  Thus,  if  one  have  a  footpath,  and 
use  it  with  horses,  he  would  be  liable  in  trespass  for  such  use, 
but  would  not  thereby  lose  his  easement  of  a  footway .^  But 
where  one  had  an  easement  of  light  by  a  certain  window,  and 
stopped  it  up,  while  he  opened  another  in  a  different  place  and 
of  a  different  size,  it  was  held,  that  he  had  no  right  to  use 
these,  and  was  without  remedy  upon  their  being  stopped  by  an 
adjacent  owner.^  But  the  mere  enlargement  of  an  old  window, 
or  changing  one  kind  of  house  into  another,  which  does  not 
increase  the  burden  upon  the  servient  tenement,  and  where  the 
change  is  not  in  the  substance,  but  in  the  mere  quality  of  the 
dominant  tenement,  as  altering  a  fulling-mill  into  a  grist-mill, 
requiring  no  more  water  to  carry  it,  or  substituting  one  kind 
of  wheel  for  another,  does  not  impair  the  right  to  enjoy  the 
light  in  the  one  case,  and  the  use  of  the  water  in  the  other,  to 
the   extent  of   the  original   easement.^     So  the  change  of  a 

1  Dyer  v.  Sanford,  9  Met.  395,  402  ;  Tud.  Lead.  Cas.  110,  130  ;  3d  ed.  191,  231  ; 
Skrainka  v.  Oertel,  14  Mo.  App.  474;  Liggins  v.  Inge,  7  Bing.  682,  where  a  mill- 
owner  authorized  a  riparian  proprietor  above  to  lower  the  bank  in  his  own  land, 
and  thereby  diminish  his  quantity  of  water.  Winter  v.  Brockwell,  8  East,  308, 
the  case  of  a  license  to  put  a  skylight  over  the  servient  estate,  stopping  the  air, 
etc.  Morse  v.  Copeland,  2  Gray,  202  ;  Dyer  v.  Sanford,  9  Met.  395  ;  Addison  v. 
Hack,  2  Gill,  221  ;  Elliott  v.  Rhett,  5  Rich.  405,  418,  419.  A  parol  release 
of  an  easement  does  not  destroy  it.  Dyer  v.  Sanford,  supra;  Erb  v.  Brown,  69 
Penn.  St.  216. 

2  Garritt  v.  Sharp,  3  A.  &  E.  325  ;  Tud.  Lead.  Cas.  132  ;  3d  ed.  233. 

3  Blanchard  v.  Bridges,  4  A.  &  R.  176  ;  Cherrington  v.  Abney,  2  Vern.  646. 

*  Saunders  v.  Newman,  1  B.  &  Aid.  258  ;  Tud.  Lead.  Cas.  132,  133  ;  3d  ed.  236  ; 
Chandler  v.  Thompson,  3  Camp.  80  ;  Luttrel's  case,  4  Rep.  87  ;  Whittier  *;.  Co- 
checo  Mg.  Co.,  9  N.  H.  454 ;  Washb.  Ease.  c.  5,  §  3  ;  4th  ed.  p.  699. 


EASEMENTS.  353 

crooked  channel  of  a  watercourse  to  a  straight  one  will  not 
affect  the  right  to  maintain  it.^ 

§  1315.  Illustration.  —  The  owner  of  an  ancient  mill  had 
acquired,  as  such  owner,  a  right  to  flow  the  land  of  another 
above  his  mill.  He  took  down  the  mill,  and  erected  it  at  a 
l)()iut  above  the  former  site,  and  ran  it  there  for  some  years. 
While  he  was  so  running  it,  the  plaintiff  purchased  the  land 
formerly  flowed.  The  mill  having  been  carried  away,  after 
having  stood  nine  years,  the  owner  rebuilt  it  upon  its  former 
site,  and  flowed  the  land,  which  he  formerly  had  done.  It  was 
held  he  had,  by  this  act  of  abandonment,  lost  the  easement  of 
a  right  to  flow  the  plaintiff's  hmd.'-^ 

§  1316.  Merger  of  Dominant  and  Servient  Estates.  —  By  unity 
of  possession  of  the  dominant  and  servient  estates  in  the  same 
person,  by  the  same  right,  the  easement  before  existing  in  one 
in  favor  of  the  other  is  extinguished  and  lost,  or  suspended, 
according  to  the  nature  of  the  estates  which  are  thus  united.^ 
If  the  dominant  estate  be  for  years,  while  the  servient  is  in  fee, 
such  union  will  operate  only  as  a  suspension,  and  not  as  an: 
extinguishment  of  the  prior  existing  easement.  It  will  revive 
upon  the  determination  of  the  estate  for  years.  In  such  case 
there  is  a  union  of  possession,  but  not  of  seisin.  To  operate 
as  an  extinguishment  of  the  easement,  the  tenant  of  both  tene- 
ments must  have  the  same  estate  of  inlieritance  in  both,  equal 
ill  validity,  quality,  and  all  other  circumstances  of  right.*  But 
if  the  title  to  one  of  the  two  tenements  turns  out  to  be  defec- 
tive, and  is  thereby  defeated,  the  unity  of  the  seisin  alone,  in 
the  mean  time,  will  not  be  held  to  have  extinguished  the  ease- 
ment previously  existing.^  So  where  the  owner  of  a  dominant 
estate,  to  which  an  easement  of  drawing  water  by  aqueduct- 

1  Hall  V.  Swift,  6  Scott,  167  ;  Bullen  v.  llunnels,  2  N.  H.  255. 

-  Taylor  v.  Hampton,  4  M'Cord,  96. 

8  Atwater  v.  Bodfish,  11  Gray,  150  ;  Wilder  v.  Wheeldon,  56  Vt.  344. 

*  Thomas  v.  Thomas,  2  C.  M.  &  R.  41  and  note  ;  Pearce  v.  McClenaglian, 
5  Rich.  178;  Tud.  Lead.  Cas.  130;  3d  ed.  230;  Tyleru.  Hammond,  11  Pick.  193, 
220;  Grant  I'.  Chase,  17  Mass.  443;  Binney  u.  Hull,  5  Pick.  503;  Atlanta  Mills 
V.  Mason,  120  Mass.  244. 

8  Tyler  u.  Hammond,  11    Pick.  193.     So,  where   the  owner  of  the   dominant 
estate  which  was  mortgaged,  purchased  the  servient  estate,  there  was  no  merger  as 
against  a  purchaser  at  mortgage  sale.     Capron  v.  Greenway,   74  Md.  289  ;  s.  c. 
22  Atl.   Rep.  269. 
VOL.   II.  —  23 


354  INCORPOREAL   HEREDITAMENTS. 

pipes  over  a  servient  tenement  is  appendant,  buys  in  the  ser- 
vient estate,  and  then  cuts  off  the  pipes,  the  easement  is  extinct 
at  once.^  And  in  such  a  case,  if  the  owner  of  both  the  estates 
sells  what  had  been  the  servient  estate  to  another,  the  ease- 
ment does  not  revive  again,  unless  expressly  reserved  in  mak- 
ing such  conveyance.^  But  if  that  ease  or  accommodation 
which,  while  the  estates  were  separately  owned,  constituted  an 
easement  in  favor  of  one,  remains  in  use,  and  is  apparent  and 
continuous,  and  reasonably  necessary  to  the  enjoyment  of  what 
had  been  the  dominant  estate,  it  would,  upon  a  division  of  the 
estate  by  conveyance,  revive  without  any  express  words  of 
grant.^ 

§  1317.  Exceptions.  —  But  unity  of  possession  of  two  parcels 
does  not  have  this  effect  upon  rights  in  a  natural  stream  of 
water  flowing  through  them  both.  And  if  the  owner  were  to 
sell  the  lower  one,  he  would  not  have  a  right  to  divert  the 
water  from  the  same,  since  a  right  to  enjoy  the  flow  of  the 
water  was  appurtenant  to  the  land  itself,  and  passed  with 
the  land.  So  if  one  have  a  mill  and  a  race-way  by  an  artificial 
channel  below  it  to  take  off  the  water  from  the  mill,  and  he 
conveys  the  mill  only,  the  right  to  use  the  channel  as  a  race- 
way would  pass  with  it  as  an  appurtenance.  So  it  might  be 
with  an  artificial  drain,  designed  for  the  benefit  of  two  houses, 
if  the  owner  sell  one  of  them.  Whether  the  right  to  use  such 
drain  passes  with  the  house  or  not,  depends  upon  whether  its 
use  is  separable,  and  capable  of  being  separately  enjoyed  or 
not.*  But  where  the  owner,  for  instance,  of  two  tenements, 
one  of  which  had  been  used  in  connection  with  the  other  so  afe 
thereby  to  enjoy  light  for  its  windows,  sold  that  tenement  to 
one  with  "  all  the  lights,  easements,  rights,  privileges,  and 
appurtenances,"  and  at  the  same  time  sold  the  other  tenement 
to  another,  it  was  held,  that,  under  the  terms  of  the  grant,  the 
right  to  light  through  its  windows  across  the  other  parcel 
would  pass.     But  this,  of  course,  is  by  force  of  the  language  of 

1  Tud.  Lead.  Cas.  112  ;  3d  ed.  199. 

2  Manning  v.  Smith,  6  Conn.  289;  Collier  v.  Pierce,  7  Graj',  18,  20;  Johnson 
V.  Jordan,  2  Met.  234,  239  ;  Ersk.  Inst.  370. 

8  Dunklee  v.  Wilton   E.  R.  Co.,  24  N.  H.  489  ;  Grant  v.  Chase,  17  Mass.  443; 
Seibert  v.  Levan,  8  Penn.  St.  383  ;  Washb.  Ease.  c.  5,  §  2  ;  4th  ed.  p.  690. 
*  Johnson  v.  Jordan,  2  Met.  234  ;  Collier  v.  Pierce,  7  Gray,  18,  20. 


EASEMENTS.  355 

the  grant,  and  not  properly  as  an  easement,  appurtenant  to  the 
same.^  As  easements  or  servitudes  are  incorporeal  riglits, 
affecting  lands  whicli  belong  to  another  proprietor,  few  of 
them  are  capable  of  proper  possession.  The  lands,  indeed, 
which  are  charged  with  the  servitude,  may  be  possessed;  but 
it  is  the  owner  of  the  servient  tenement  who  possesses  these, 
and  not  he  who  claims  the  servitude.  The  use,  therefore,  or 
exercise  of  the  right,  is  to  servitudes  what  seisin  is  to  land 
itself.2 

§  1318.  Of  Mines  and  Mining  Rights.  —  Tiewed  in  one  light,  a 
property  in  mines  is  strictly  an  incorporeal  one ;  in  another,  it 
is  as  decidedly  that  of  a  corporeal  hereditament.  This  grows 
out  of  the  fact  already  stated,  that  there  may  be  two  distinct 
and  separate  freeholds  in  the  same  parcel  of  land,  if  it  contain 
minerals,  quarries  of  stone,  and  the  like,  the  one  embracing 
the  surface,  the  other  the  mines.  And  these  may  belong  to 
separate  and  distinct  owners.  This  has  now  become  a  familiar 
doctrine.^  Besides  this,  there  may  be  distinct  ownerships  in 
the  minerals  contained  in  the  same  parcel  of  land.  One  may 
own  the  iron,  another  the  limestone  :  so  one  may  own  one 
vein  of  coal,  and  another  a  separate  vein,  if  distinguishable, 
lying  beneath  or  by  the  side  of  the  other,  within  the  same 
parcel  of  land.*  On  the  other  hand,  whoever  owns  the  surface 
is  presumed  to  own,  and  would  originally  actually  own,  what- 
ever minerals  there  might  be  beneath  such  surface,  until  he  shall 
have  granted  away  the  one  or  the  other,  and  thus  separated 
their  ownership.  But  in  doing  this  he  may,  as  in  the  grant  of 
the  land  itself,  part  with  the  full  title  and  entire  property,^  or  he 

1  Swansborough  v.  Coventr)',  9  Bing.  305. 

2  Eisk.  Inst.  353. 

3  Ante,  §  21  ;  Adam  v.  Briggs  Iron  Co.,  7  Ciish.  361,  366  ;  Caldwell  v.  Fulton, 
31  Penn.  St.  475,  478 ;  Foster  v.  Runk,  2  East.  Rep.  636  (Penn.  Sup.  Ct.)  ;  Neill  i-. 
Lacy,  id.  6l0  ;  Stewart  v.  Chadwiek,  8  Iowa,  463,  468  ;  Barnes  v.  Mawson,  1  M.  & 
Sel.  84  ;  Benson  v.  Miners'  Bank,  20  Penn.  St.  370  ;  Clement  v.  Youngman,  40 
Penn.  St.  341. 

*  Caldwell  o.  Copeland,  37  Penn.  St.  427. 

*  He  may  also  make  a  lease  of  the  minerals  for  a  terra  of  years.  But  if  the  in- 
strument, though  purporting  to  be  a  lease,  grants  the  right  to  take  all  the  coal 
beneath  the  surface  of  the  land,  and  the  grantee  binds  himself  to  mine  and  remove 
all  that  coal,  and  to  pay  a  certain  price  per  ton,  the  contract  being  binding  till  all 
the  coal  is  mined,  and  the   rights,  covenants,  and  obligations  being  expressed  as 


356  INCORPOREAL    HEREDITAMENTS. 

may  carve  out  a  partial  interest  and  ownership  which  shall 
create  only  an  easement  in  the  same,  while  he  retains  the  fee 
ill  liimself.  Tlius  he  may  grant  to  another  the  entire  body  of 
minerals  within  his  land,  retaining  only  his  property  in  the 
surface,  whereby  he  would  create  an  independent  freehold  and 
inheritance  in  his  grantee  ;  or  he  may  grant  a  right  or  privilege 
to  take  minerals  from  his  land  without  parting  with  the  fee  in 
any  part  of  the  same,  and  may  still  retain  his  ownership  in  all 
the  minerals  contained  therein  which  shall  not  have  been  taken 
and  appropriated  by  his  grantee.  In  the  latter  case,  he  only 
creates  and  grants  an  easement  to  his  grantee,  a  mere  incor- 
poreal hereditament.  Many  of  the  questions,  tlierefore,  which 
have  arisen  in  this  country,  have  turned  upon  the  point, 
whether  the  grant  under  which  the  claimant  makes  title  was  of 
the  entire  mineral  as  one  freehold,  or  of  a  right  to  take  it  in  the 
nature  of  an  easement.  From  the  impossibility  of  making 
livery  of  seisin  of  minerals  in  place  in  the  earth,  the  English 
courts  were  formerly  inclined  to  treat  grants  of  them  in  the 
light  of  incorporeal  hereditaments.  But  in  this  country,  where 
the  delivery  and  recording  of  a  deed  have  so  generally  been 
deemed  equivalent  to  livery  of  seisin,  this  strictness  has  not 
been  observed.  But  still,  in  both  countries,  the  inquiry  often 
turns  upon  the  terms  of  the  grant,  whether  of  the  entire 
mineral,  or  a  right  to  take  it,  not  as  realty,  but  under  a  right 
to  convert  it  into  personalty  by  working  or  mining  it.^  An 
early  and  leading  case  upon  tliis  subject  is  that  of  Lord  Mount- 
joy,  which  is  reported  in  various  places.  In  that  case,  the 
grantor  of  a  manor  reserved  to  himself  by  covenant  from  the 
grantee  a  right  to  dig  for  ore  in  the  waste  of  the  manor,  and 
to  dig  turfs  there  sufficient  to  make  alum  and  copperas.  It 
was  held  to  be  an  incorporeal  hereditament,  and  one  which 
was  not  the  subject  of  division  so  as  to  be  exercised  by  several 
different  owners  of  the  same  right.^     In  the  above  case,  the 

V>iii(ling  the  parties,  their  heirs  and  assigns,  and  executors  and  administrators,  the 
effect  of  the  instrument  is  an  actual  grant  of  the  coal,  and  not  a  lease.  Del,,  Lack. 
&  W.  R.  R.  Co.  V.  Sanderson,  2  East.  Rep.  250  (Penn.  Sup.  Ct.)  ;  Hope's  App., 
Sid.  728. 

1  Caldwell  v.  Fulton,  31  Penn.  St.  478  ;  Shep.  Touch.  96 ;  Haiiley  v.  Wood,  2 
B.  &  Aid.  724  :  Clement  v.  Youngman,  40  Penn.  St.  341  ;  Hope's  App.,  supra. 

2  Huntington  and   Mountjoy's  case,  Godb.  17  ;  .s.  c.  4  Leon.  147  ;  s.  c.  1  An- 
derson, 307.     See  also  Caldwell  v.  Fulton,  supra. 


EASEMENTS.  357 

right  was  not  to  an  unlimited  dominion  over  the  ores  and  turf. 
So  where  the  grant  was  not  of  the  ore  in  a  particular  locality 
in  soUdo.  But  a  grant  of  an  exclusive  right  to  search  for  and 
dig  and  carry  away  iron-ore  and  limestone  in  a  certain  parcel 
of  land,  the  grantee  paying  so  much  for  every  ton  of  ore  he 
should  take  from  the  land,  was  held  to  be  an  incorporeal 
hereditament  even  in  respect  to  the  limestone.  And  it  was 
held  generally,  that  where  the  grant  is  of  an  undefined  part  of 
the  profits  of  land,  like  a  right  to  dig  turfs  and  carry  them 
away,  it  would  not  pass  a  title  to  the  land  itself. ^  Such  a 
grant  may  perhaps  be  of  the  nature  of  a  mere  license,  although 
it  be  exclusive  in  its  character.^  But  where  the  grant  was  of  a 
right  to  dig  coal  under  the  grantor's  land,  described  "  to  any 
extent,"  it  was  held  to  be  the  grant  of  complete  dominion  over 
the  mineral  therein,  and  to  carry  a  freehold  interest  therein. 
The  court  say :  "  Coal  and  minerals  in  place  are  land.  It  is 
no  longer  to  be  doubted  that  they  are  subject  to  conveyance  as 
such."  And  though  the  grant  in  this  case  was  of  a  right  to 
take  the  coal,  it  was  held  to  bo  a  grant  of  the  coal  itself  as  a 
freehold.^  As  a  consequence  of  this  double  ownership  of  the 
surface  and  mines  below,  no  mine-owner  is  affected  by  any  acts 
of  possession  for  gaining  an  adverse  title  done  upon  the  sur- 
face.* Nor  can  one  gain  a  title  to  mines  by  prescription, 
because  prescription  applies  only  to  incorporeal  hereditaments. 
But  one  may  acquire  a  title  to  a  mine  by  adverse,  exclusive 
enjoyment  of  the  same  against  the  owner  thereof.  So  he  may, 
by  prescription,  acquire  the  right  to  work  a  particular  mine, 
but  not  the  exclusive  ownership  thereof.^     In  accordance  with 

1  Stockbridge  Iron  Co.  v.  Hudson  Iron  Co.,  107  Mass.  290. 

2  Silsby  V.  Trotter,  29  N.  J.  Eq.  228  ;  East  Jersey  Iron  Co.  v.  Wright,  32  N.  J. 
Eq.  248  ;  Clement  v.  Youngman,  40  Penn.  St.  341  ;  Caldwell  v.  Copeland,  37  Penn. 
St.  427  ;  Co.  Lit.  4  a  ;  Bain  bridge  on  Mines,  etc.,  254,  255 ;  4th  ed.  369,  370 ;  Grubb 
V.  Bayard,  2  Wall.  Jr.  81  ;  Hanley  v.  Wood,  2  B.  &  Aid.  719.     ' 

«  Caldwell  V.  Fulton,  31  Penn.  St.  478  ;  Armstrong  v.  Caldwell,  53  Penn.  St. 
284,  287  ;  Hope's  App.,  3  East,  Rep.  728  (Penn.  Sup.  Ct. ). 

*  Del.  &  Hud.  C.  Co.  v.  Hughes,  183  Penn.  St.  66 ;  s.  c.  38  Atl.  Rep.  568  ;  s.  c. 
38  L.  R.  A.  8-26  ;  .s.  c.  63  Am.  St.  Rep.  743.  Where  the  severance  was  by  deed, 
see  Caldwell  v.  Copeland,  37  Penn.  St.  427  ;  s.  c.  78  Am.  Dec.  436  and  note.  Sli". 
Riddle  v.  Brown,  20  Ala.  412  ;  s.  c.  56  Am.  Dec.  202. 

^  Caldwell  y.  Copeland,  supra;  Adam  v.  Briggs  Iron  Co.,  7  Cush.  361,  366  ; 
Shep.  Touch.  96. 


358  INCORPOREAL   HEREDITAMENTS. 

the  above  doctrines,  a  lease  of  the  right  and  privilege  to  mine 
or  take  away  stone  or  coal  from  certain  veins  in  the  lessor's 
land  is  the  grant  of  an  interest  in  land,  and  not  a  mere  license 
to  take  coal.^  Another  incident  to  the  distinctive  character 
between  the  grant  of  a  mine,  and  of  a  right  to  take  an  unde- 
fined part  of  the  minerals  in  a  certain  parcel  of  land,  has 
already  been  stated.  In  the  first,  the  right  is  susceptible  of 
subdivision  of  ownership  by  conveyances  from  the  owner  of 
the  entire  interest ;  whereas  the  mere  right  to  take  minerals 
is  an  entire  thing,  and  is  not  divisible  so  as  to  be  shared  by 
several  claiming  under  the  original  proprietor  thereof,  and  a 
conveyance  of  part  of  it  extinguishes  it  altogether.^ 

§  1319.  California  Mining  Claims.  —  There  has  grown  up  in 
a  pretty  large  region  of  this  country  a  peculiar  system  of  laws 
in  relation  to  mining  rights,  which  it  seems  proper  to  notice  as 
a  part  of  the  American  law  on  the  subject.  These  laws  took 
their  rise  in  California  upon  the  discovery  of  the  extensive  de- 
posits of  precious  metals  with  which  that  country  abounds, 
and  have  been,  as  is  understood,  substantially  adopted  in  the 
other  new  States  and  Territories  in  which  these  metals  are 
found.  They  apply  only  to  operations  for  minerals  upon  the 
public  lands ;  while  in  respect  to  mines  or  lands  containing 
mineral  deposits,  which  belong  to  individuals  as  private  prop- 
erty in  fee,  the  ordinary  rules  of  the  common  law  serve  to  de-' 
fine  and  ascertain  the  rights  of  their  proprietors.^  The  policy 
of  that  State  has  been,  from  an  early  period  in  its  history,  to 
encourage  the  opening  and  working  of  mines  upon  the  public 
lands.  By  her  legislation  upon  the  subject,  she  established 
the  policy  of  permitting  all  who  desired  to  work  her  mines  of 
gold  and  silver  with  or  without  condition.  But  as  the  fee  of 
the  land  was  still  held  to  be  in  the  State  until  sold  and  con- 
veyed, the  common  law  afforded  but  little  aid,  by  the  way  of 

1  Harlan  v.  Lehigh  Coal,  etc.,  35  Peiin.  St.  287,  292;  Caldwell  v.  Fultou,  supra; 
Sheets  v.  Allen,  89  Penn.  St.  47.     Cf.  Hope's  App.,  supra. 

2  Mountjoy's  case,  Godb.  17  ;  Caldwell  y.  Fulton,  swpra  ;  Van  Rensselaer  v.  Rad- 
cliff,  10  Wend.  639. 

3  Henshaw  v.  Clark,  14  Cal.  460,  464.  The  custom  among  miners  of  appro- 
priating mining  claims  on  unoccupied  lands,  and  working  them  at  a  certain  per- 
centage of  return  products,  seems  to  have  been  borrowed  from  the  ancient  Spanish 
laws.     Desloge  v.  Pearce,  38  Mo.  598. 


EASEMENTS.  359 

precedent,   in  fixing  the  rights  of  parties  who  undertook  to 
execute  the  license  thus  created.     And  yet,  as   in  oi'der  to  do 
this  it  often  required  the  expenditure  of  large  sums  of  money 
in  permanent  structures  and  excavations,  and  a  more  or  less 
extended  actual  occupation  and  possession  of  particular  parcels 
of  land,  it  became  necessary  to  adopt  some  rule  and  standard 
by  which  the  conflicting  rights  of  such   miners  to  these  pos- 
sessions might  be  regulated  and  determined.     This  was  done 
by  a  general  provision  of    law,  that  these    conflicting    claims 
should  be  adjudicated  by  the  rules  and   customs  which  might 
be  established  by  bodies  of  miners  working  in  the  same  vicinity 
in  which  they  arose.^     A  statute  of  1852  accordingly  gave  jjer- 
mission  to  persons  to  dig  and  work  mines  upon  public  lands, 
even  though  already  occupied  for  grazing  and  agricultural  j)ur- 
poses ;  although,  as  against   all   persons  but  the  true  owner, 
such   occupation   would   otherwise    give    a  right  of  continued 
possession,  upon  the  principle  that  prior  in  tempore,  potior  in 
jure?     This  right  to  work  the  mines  carried  with  it  a  right  to 
use  the  streams  of  water  which  were  accessible  for  the  pur- 
pose, and  to  that  end  to  dam  or  divert  them.     But  one  miner 
might  not  divert  a  stream  which  had  previously  been  occupied 
by  another,  nor  one  which  had  been  applied  to  the  working  of 
an  existing  mill;^  nor  had  a  miner  a  right,  in  prosecuting  his 
operations,  to  disturb  the  occupation  of  land  by  a  hotel-keeper 
actually  settled  thereon.*     The  questions,  therefore,  that  have 
arisen  in  respect  to  mines  upon  public  lands,  have  chiefly  been 
between   miners  themselves,  or  between  miners   and  the   oc- 
cupants of  lands  for  agricultural  purposes.     And  in  determin- 
ing the  rules  to  be  applied  in  such  cases,  the  courts  have  felt 
bound  to  take  notice  of  the   political  and   social   condition  of 
the  country.    They  accordingly  held  that  the  interest  of  the  pos- 
sessor of  a  mining  claim  was  property,  and  was  subject  to  be 

1  Hicks  V.  Bell,  3  Cal.  219,  227  ;  Table  Mt.  Tunnel  Co.  v.  Stranalian,  20  Cal. 
198,  208. 

2  Stoakes  v.  Barrett,  5  Cal.  39  ;  Clark  v.  Duval,  15  Cal.  88  ;  McClintock  v.  Br)'- 
den,  5  Cal.  100,  101  ;  Rogers  v.  Soggs,  22  Cal.  444. 

^  Irvviu  V.  Phillips,  5  Cal.  146,  147  ;  Sims  v.  Smith,  7  Cal.  148  ;  Tartar  v.  Spring 
Creek,  etc.  Co.,  5  Cal.  398  ;  Ortman  v.  Dixon,  13  Cal.  33  ;  McDonald  v.  Bear  River, 
etc.  Mining  Co.,  13  Cal.  220. 

4  Fitzgerald  v.  Urton,  5  Cal.  308. 


360  INCORPOREAL   HEREDITAMENTS. 

seized  and  sold  on  execution ;  ^  that  though  such  miner  enters 
upon  the  public  land,  and  works  the  mine  within  it  by  permis- 
sion only  of  the  government,  so  long  as  this  permission  is  un- 
revoked he  may  have  the  same  remedy  against  a  stranger  for 
disturbing  his  possession  as  if  he  were  the  true  owner  of  the 
premises,  and  that  he  has  a  good  vested  title  to  the  same  until 
divested  by  the  superior  title  of  the  true  owner.^  It  is  accord- 
ingly held  that  he  may  sell  or  hypothecate  his  claim,  and  that 
he  holds  the  same  subject  to  taxation  as  property.^  And  that 
this  property  in  the  mine  has  all  the  qualities  and  incidents  of 
a  freehold  estate,  with  the  exception,  perhaps,  of  the  effect  of 
abandoning  the  same :  *  ejectment  would  accordingly  lie  to  re- 
cover the  same,  and,  like  other  real  actions,  would  be  local  in 
its  character.^  And  it  requires  a  deed  in  order  to  convey  it." 
As  a  general  rule,  the  public  mineral  lands  of  the  State  arc 
open  to  all  persons  who  in  good  faith  enter  upon  them  for 
mining  purposes^  But  to  justify  such  an  entry  and  claim, 
the  claimant  must  show,  1,  that  the  land  is  public;  2,  that 
it  contains  minerals ;  and  3,  that  he  entered  hona  fide  for  the 
purpose  of  mining  them  ;  and  if  he  can  show  this,  he  can, 
after  having  entered,  hold  against  all  the  world  but  the  gov- 
ernment to  whom  the  land  belongs.^  The  title  by  which  min- 
ing claims  are  held  is  that  of  possession.  But  this  is  regu- 
lated and  defined  by  usage  and  local  and  conventional  rules, 
and  must  be  in  accordance  with  those  rules.^  And  when  the 
miners  of  a  neighborhood  have  met  and  agreed  upon  a  set  of 
rules  upon  the  subject,  the  courts  do  not  inquire  into  the  forms 
of  holding  such  meeting,  but  adopt  these  as  the  law  of  that 
vicinity,  provided  they  are  not  in  conflict   with  the  general 

1  McKeoii  V.  Bisbee,  9  Cal.  137. 

2  Merced  Mining  Co.  v.  Fremont,  7  Cal.  317,  326. 

3  State  V.  Moore,  12  Cal.   56,  71. 

4  Merritt  v.  Judd,  14  Cal.  59,  64. 
6  Watts  V.  White,  13  Cal.  321. 

6  McCan-on  v.  O'Connell,  7  Cal.  152.  But  by  statute  of  1860,  no  seal  is  re- 
quired to  pass  title  to  a  mining  right,  but  a  writing  is.  St.  John  v.  Kidd,  26  Cal. 
263  ;  Patterson  v.  Key.stone  Min.  Co.,  30  Cal.  360. 

T  Smith  V.  Doe,  15  Cal.  100,  106  ;  Gillan  v.  Hutchioson,  16  Cal.  156. 

8  Lentz  V.  Victor,  17  Cal.  274. 

9  Attwood  V.  Fricot,  17  Cal.  43  ;  McGarrity  v.  Byington,  12  Cal.  426  ;  Table 
Mt.  Tunnel  Co.  v.  Stranahan,  20  Cal.  208. 


EASEMENTS.  361 

laws  of  the  State. ^  Thus  these  rules,  among  other  things, 
may  fix  the  quantity  of  ground  which  any  one  miner  may 
claim  under  his  location  for  mining  purposes,  though  they  can- 
not limit  the  number  of  claims  which  any  one  may  acquire 
and  hold  by  purchase?  And  if  he  takes  up  a  larger  quantity 
than  that  fixed  by  the  rules,  though  he  cannot  hold  it  against 
another  wishing  to  locate  the  same  for  mining  purposes,  his 
possession  will  be  good  as  to  all  others.^  So  they  may  fix  the 
mode  of  making  a  location  of  a  mining  right,  which  is  gener- 
ally done  by  posting  upon  the  premises  a  notice  of  the  requisite 
form  ;  and  the  right  of  one  miner,  it  seems,  may  be  lost  and 
acquired  by  another,  if  such  notice  is  taken  down  by  the  first 
occupant  and  replaced  by  the  second,  if  he  take  actual  pos- 
session accordingly.  But  where  one  took  up  a  claim  for  him- 
self and  another  in  their  joint  names,  and  posted  notice 
accordingly,  he  could  not,  by  taking  down  this  notice  and  post- 
ing notices  in  the  names  of  others,  deprive  his  original  cu- 
tenant  of  his  property  in  the  mining  right.  Tlie  title  to  the 
land  in  the  mean  time,  however,  remains  in  the  public  un- 
changed.* Under  the  Mexican  law,  a  conveyance  of  land  by 
the  government  did  not  carry  the  precious  metals  within  it, 
unless  expressly  granted  ;  whereas,  by  the  law  of  California, 
such  a  conveyance,  whether  by  the  State  or  the  United  States, 
to  private  owners,  carries  the  minerals,  unless  the  same  are 
expressly  reserved  in  the  grant.^  By  the  English  common 
law,  mines  of  gold  and  silver  belonged  to  the  crown,  as  an 
incident  to  the  royal  prerogative.^  In  the  grant  of  the  English 
colonies  in  New  England,  the  crown  reserved  one  fifth  of  the 
precious  metals ;  and  mines  were  leased  by  the  colonial  gov- 
ernment to  such  as  discovered  them,  subject  to  this  reserva- 
tion." In  New  York,  these  metals  belong  to  the  people  as 
successors  of  the  sovereignty.^  * 

*  Note.  —  For  an   exhaustive  exposition   of  the   California   mining  laws,  see 
"  Legal  Titles  to  Mining  Claims  and  Water  Rights  in  California,"  by  G.  Yale. 

1  Gore  V.  McBrayer,  18  Gal.  588  ;  English  v.  Johnson,  17  Gal.  118. 

2  Prosser  v.  Parks,  18  Cal.  47.  3  English  v.  Johnson,  17  Gal.  118. 

4  Gore  V.  McBrayer,  18  Cal.  588  ;  Table  Mt.  Tunnel  Co.  v.  Stranahan,  20  Cal. 
207  ;  Johnson  v.  Parks,  10  Cal.  446. 

6  Moore  v.  Smaw,  17  Cal.  199.  «  Co.  Lit.  4  a ;  Piowd.  313. 

T  3  Dane,  Abr.  137. 

8  Willard,  Real  Estate,  50.     See  Wms.  Real  Prop.  14,  note. 


362  USES   PHIOR   TO    THE   STATUTE   OF    USES. 


CHAPTER  LV. 

USES  PRIOR  TO  THE  STATUTE  OF  USES. 

§  1320.  Division  of  estates  into  legal  and  equitable. 

1321.  Acts  of  mortmain. 

1322.  Fidei-commissum. 

1323.  Uses  modelled  upon  the  fidei-commissum. 

1324.  Nature  of  use  requires  two  parties. 

1325.  Definition  of  use. 

1326.  Remedj'  by  subpoena  contrived. 

1327.  Cestui  que  iise  not  recognized  by  law. 

1328.  What  might  be  conveyed  to  uses. 

1329.  Who  might  be  feoffees  to  uses. 

1330.  Equity  rules  govern  property  in  uses. 

1331.  How  created. 

1332.  Resulting  uses. 

1333.  Express  use  sustained  without  consideration. 

1334.  No  resulting  use  if  consideration  paid. 

1335.  What  declarations  of  use  enforced. 

1336.  Rules  of  law  applied  to  uses. 

1337.  Uses  devisable. 

1338.  Uses  were  alienable. 

1339.  Use,  how  severed  from  legal  estate. 

1340.  Various  limitations  of  uses. 

1341.  Rules  as  to  legal  estates  unaffected  by  uses. 

1342.  Peculiarities  in  conveyances  to  uses. 

1343.  Uses  had  uo  incidents  of  tenure. 

1344.  How  uses  may  be  lost. 

1345.  Privity  and  confidence  explained. 

§  1320.  Division  of  Estates  into  legal  and  equitable.  —  The 
interests  in  real  property  next  to  be  considered  are  not  only 
of  an  incorporeal  character,  but  are,  from  their  nature,  to  be 
traced  to  a  different  source  from  any  of  those  which  have  thus 
far  been  treated  of,  except  what  may  have  been  embraced 
under  mortgages.  "With  this  single  exception,  the  estates 
which  have  been  examined  had  their  origin  and  derived  their 
qualities  and  incidents  from  the  common  law;  whereas  that 
class  which  is  now  to  be  treated  of  was  derived  from  the  rules 
and  principles  which  prevail  in  courts  of  equity.     And  this 


USES   PRIOR   TO    THE   STATUTE    OF   USES.  363 

diversity  of  origin  gave  rise  to  the  terms  "legal  "  and  "equi- 
table," by  which  the  two  classes  of  estates  are  distinguished. 
Under  the  latter  are  embraced  uses. 

§  1321.  Acts  of  Mortmain. — Uscs  lie  at  the  foundation  of 
the  whole  system  of  trusts,  enter  essentially  into  the  forms 
and  effect  of  modern  conveyancing,  are  constantly  applied  in 
framing  and  carrying  out  family  settlements ;  and  though  no 
longer  existing  as  a  distinct  species  of  property,  they  are 
made  to  play  too  important  a  part  in  the  law  of  real  property 
as  a  system  to  be  passed  over  without  a  somewhat  extended 
examination.  The  common  law,  in  its  feudal  elements,  had 
little  reference  to  trade  or  commerce.  The  relation  of  lord 
and  vassal  recognized  no  ownership  in  land  beyond  an  occu- 
pancy and  possession  by  some  acknowledged  proprietor,  who 
was  to  perform  the  requisite  feudal  services  belonging  to  the 
same;  and  it  was  by  slow  degrees  only  that  land  became  alien- 
able at  all.  When,  therefore,  commerce  began  to  develop 
itself,  and  to  stimulate  the  awakening  spirit  of  the  English 
people,  ingenuity  was  quickened  to  devise  some  means  by 
which  real  estate  should  receive  the  quality  of  convertibility 
in  some  more  flexible  form  than  that  which  had  hitherto  been 
known  to  the  feudal  law.  This  was  aided  by  the  ingenuity 
of  English  ecclesiastics  in  their  attempts  to  evade  the  laws 
against  mortmain,  which  the  barons  and  other  landed  nobility 
had  procured  to  be  enacted  to  counteract  the  grasping  cupid- 
ity of  the  Cfiurch  at  that  day.  In  a  superstitious  age,  it  had 
become  customary  to  transfer  lands  to  ecclesiastical  establish- 
ments for  religious  uses,  till  attempts  were  made  to  prevent 
this,  first  by  the  36th  chapter  of  Magna  Charta,  in  1217,  and 
afterwards  by  the  statute  7  Edw.  I.,  Be  Religiosis,  in  1279, 
prohibiting  the  conveyance  of  lands  in  mortmain,  under  the 
penalty  of  forfeiting  the  same  to  the  crown  or  the  chief  lord 
of  the  fee,  under  whom  the  lands  had  originally  been  held. 

§  1322.  Fidei-commissum.  —  The  mode  in  which  it  was  at- 
tempted to  evade  these  laws  was  this :  There  had  from  an 
early  period  been  a  high  officer  in  the  kingdom  with  judicial 
powers  and  functions,  under  the  name  of  Chancellor,^  —  an 
office  which  was  early  filled  by  an  ecclesiastic.     As  a  judicial 

1  1  Camp.  Lives  of  Chancellor.^,  30. 


3G4  USES   PRIOR   TO    THE   STATUTE   OP    USES. 

ofiicer,  he  drew  many  of  his  rules  and  notions  of  chancery 
law  from  that  of  Rome.  Prior  to  the  time  of  Augustus,  the 
Romans  had,  hy  a  variety  of  independent  laws,  excluded  many 
classes  of  persons  from  taking  property  as  lieirs,  which  term 
included  as  well  those  who  took  by  devise  as  by  descent. 
Among  these,  for  instance,  women  were  excluded  by  the 
Voconian  law.^  Hence  it  became  customary,  in  order  to 
evade  these  laws,  for  persons  wishing  to  constitute  as  their 
heirs  others  who  could  not  take  property  by  direct  appoint- 
ment, to  give  the  same  to  some  one  qualified  to  take  as  heir, 
with  a  request  that  he  would  restore  the  inheritance,  or  some 
principal  part  of  it,  to  the  one  who  was  the  real  object  of  the 
donor's  bounty. ^  There  was  not,  however,  until  the  time  of 
Augustus,  any  means  of  enforcing  an  execution  of  this  con- 
fidence. It  depended  entirely  upon  the  good  faith  of  the 
person  named  as  the  heir.^  During  his  reign,  the  consuls 
were  directed  to  compel  a  performance  in  such  cases;  and 
afterwards  a  praetor  was  created,  to  whom  jurisdiction  over 
questions  of  this  character  was  specially  assigned.^  Where 
property  was  given  in  this  way  it  was  called  a  Jidei-commissuin. 
§  1323.  Uses  modelled  upon  the  Fidei-commissum.  —  What 
had  been  so  common  under  the  Roman  law  served  as  a  ready 
hint  to  clerical  chancellors.  And  although  there  may  be 
some  question  whether  they  actually  introduced  the  doctrine 
of  uses  into  the  English  from  the  civil  law,  they  were  the 
first  to  su[)ply  a  remedy  by  which  to  enforce  them,  and  thus 
give  form  and  efficiency  to  the  system. °  The  clergy  were 
thereby  furnished  with  a  ready  means  by  which  to  evade  the 
statutes  of  mortmain,  by  simply  having  lands  conveyed  in 
fee-simple  to  some  one  in  whom  the  Church  might  confide, 
upon  the  faith  that  he  should  permit  the  ecclesiastical  body 
intended  to  be  benefited  to  enjoy  the  profits  of  the  estate.^ 
But  though  an  attempt  was  made  by  the  statute  of  15  Rich. 
II.   c.   5,  to  counteract  this  scheme,  by  requiring  lands  held 

1  1  Brown,  Civil  Law,  304  ;  Tlinipp,  Hist.  Tracts,  220. 

2  1  Spence,  Eq.  Jur.  436. 

3  Bac.  Law  Tracts,  515. 

*  Inst.  2,  23,  12  ;  1  Spence,  Eq.  Jur.  436  ;  Bac.  Law  Tracts,  315. 
6  1  Report,  Eng.  Com.  Real  Est.  8  ;  Bac.  Law  Tracts,  318,  324. 
6  1  Spence,  Eq.  Jur.  440  ;  2  Bl.  Com.  328. 


USES  PRIOR  TO  THE  STATUTE  OF  USES.         365 

"to  the  use  of  religious  people  or  other  spiritual  persons," 
to  be  amortised  by  license  of  the  king  and  lords,  or  to  be  sold 
to  some  other  use,  and  extending  to  guilds  and  fraternities 
the  prohibition  against  holding  lands  to  the  use  of  other  per- 
sons, the  mischiefs  of  evading  the  rules  of  the  common  law  in 
respect  to  the  titles  to  lands  continued  to  be  felt.  By  means 
of  these  uses,  which  were  ordinarily  of  a  secret  nature,  it 
became  customary  also  for  laymen  to  put  their  estates  beyond 
the  danger  of  forfeiture  by  any  act  of  which  they  might  be 
guilty,  as  well  as  beyond  the  reach  of  their  creditors.^  This 
was  the  case  to  a  remarkable  extent  during  the  civil  wars  be- 
tween the  Houses  of  York  and  Lancaster,  where  the  triumph 
of  either  faction  was  followed  by  attainder  and  confiscation  of 
the  estates  of  those  who  had  taken  part  against  them.^ 

§  1324.  Nature  of  Use  requires  Two  Parties.  —  There  must 
be  at  least«two  persons  and  two  distinct  interests  in  respect  to 
lands  in  order  to  create  a  use.  The  original  feudal  notion 
remained  of  seisin  and  possession  in  some  one  who  held  these 
as  the  only  owner  known  to  or  recognized  by  the  law.  So 
far  as  he  was  bound  by  any  trust  or  confidence  to  permit  this 
holding  to  be  for  the  benefit  of  a  third  person,  he  was  amen- 
able only  to  the  jurisdiction  of  the  chancellor..  The  one  who 
thus  held  the  land  was  called  o.  feoffee  to  tise,  and  sometimes  a 
trustee;  while  he  for  whose  benefit  the  land  was  thus  held 
was  called  a  cestui  que  use.^ 

§  1325.  Definition  of  Use.  —  A  use  is  the  right  in  one  per- 
son, called  a  cestui  que  use,  to  take  the  profits  of  land  of  which 
another  has  the  legal  title  and  possession,  together  with  the 
duty  of  defending  the  same,  and  of  making  estates  thereof 
according  to  the  direction  of  such  cestui  que  use.^  A  use  was 
not  something  issuing  out  of  land  like  rents,  nor  annexed 
thereto  like  rights  of  common  or  conditions,  but  was  col- 
lateral to  the  possession  of  the  feoffee,  and  of  those  claiming 

1  Sand.  Uses,  17  ;  1  Spence,  Yai.  Jur.  440,  443  ;  Burgess  v.  Wheate,  1  W. 
Black.  135. 

2  1  Spence,  Eq.  Jur.  441. 

3  Co.  Lit.  271  b,  Butler's  note,  231,  §  2. 

4  Tud.  Lead.  Cas.  252  ;  Chudleigli's  case,  1  Rep.  121  ;  2  Bl.  Com.  330  ;  Bac. 
Law  Tracts,  307.  Bacon  says :  "  The  wsc  is  but  the  equity  and  honesty  to  hold 
the  land  in  conscientia  boni  viri."     Law  Tracts,  150. 


366  USES    PRIOR    TO    THE    STATUTE    OF    USES. 

that  possession  under  liim.  Between  the  feoffee  and  the  cestui 
que  use  there  was  a  confidence  touching  the  land,  annexed 
in  privity  to  the  estate  and  to  the  person.^  Lord  Mansfield 
speaks  of  a  use  as  a  chose  in  action.^  But  in  respect  to  legal 
ownership,  it  was  neither  jus  in  re,  — an  estate  in  a  thing; 
nor  jus  ad  rem,  —  a  right  of  demand  in  law  for  the  thing. 

§  1326.  Remedy  by  Subpcsna  contrived.  —  The  only  resort 
which  a  cestui  que  use  at  first  had  for  enforcing  the  use 
was  the  good  faith  of  the  trustee.^  But  in  the  reign  of 
Richard  IT.  (about  1380),  John  De  Waltham,  Bishop  of  Salis- 
bury, who  was  Master  of  the  Rolls,  and  at  one  time  Keeper 
of  the  Great  Seal,  but  never  Chancellor,  as  he  has  sometimes 
been  called,  invented  the  "writ  of  subpcena,"  returnable  into 
chancery,  by  means  of  which  a  cestui  que  use  might  call  the 
feoffee  to  use  to  account  under  oath  in  a  court  of  chancery.^ 
And  the  mode  by  which  the  rights  of  the  cestui  que  use  were 
enforced  was  by  imprisoning  the  delinquent  party  until  he 
complied  with  the  order  of  the  chancellor."  At  first,  this 
process  in  equity  ran  only  against  the  trustee  himself,  but 
not  against  his  heir  or  alienee.  And  this  continued  to  be 
the  case  till  the  time  of  Henry  VI.,  when  it  was  extended  to 
heirs,  and  afterwards  to  alienees  who  took  with  notice  of  the 
trust. ^  To  all  other  persons  the  feoffee  was  as  much  the  real 
owner  of  the  fee  as  if  he  did  not  hold  it  to  the  use  of  another." 

§  1327.  Cestui  que  Use  not  recognized  by  Law.  —  The  courts 
of  common  law  did  not  recognize  the  rights  of  a  cestui  que  use 
to  either  the  land  or  its  profits,  nor  was  there  any  form  of 
action  at  law  by  which  these  rights  could  be  enforced;^  and 

1  Cornish,  Uses,  17;  Chudleigh's  case,  1  Rep.  121;  Co.  Lit.  171  b,  Butler's 
note,  231,  §  2  ;  Tud.  Lead.  Cas.  253  ;  1  Spence,  Eq.  Jur.  448,  note. 

2  Burgess  v.  Wheate,  1  W.  Bl.  158  ;  Bac.  Law  Tracts,  303;  1  Spence,  Eq.  Jur. 
442  ;  Cornish,  Uses,  17. 

8  Tud.  Lead.  Cas.  252. 

*  Cornish,  Uses,  12  ;  1  Spence,  Eq.  Jur.  338,  note.  Sir  J.  Mackintosh  ascribes 
this  writ  of  subpcena  to  a  desire  to  reach  justice  in  the  ordinary  courts,  because  the 
turbulent  barons  had  bidden  defiance  to  the  ordinary  jurisdiction  and  processes  of 
law.     16  Law  Rev.  325. 

6  Chudleigh's  case,  1  Rep.  121  ;  Tud.  Lead.  Cas.  253. 

6  Bac.  Law  Tracts,  318  ;  1  Spence,  Eq.  Jur.  445  ;  2  Bl.  Com.  329  ;  Burgess  v. 
Wheate,  1  W.  Bl.  156. 

^  Co.  Lit.  271  b,  Butler's  note,  231,  §  2  ;  1  Spence,  Eq.  Jur.  445. 

*  1  Spence,  Eq.  Jur.  442. 


USES   PRIOR   TO   THE   STATUTE   OF    USES.  367 

it  is  stated  by  Bacon  that  no  statute  was  ever  made  for  the 
benefit  of  cestui  que  use,  but  only  for  the  benefit  of  strangers 
against  cestuis  que  use  and  their  feoffees.^  The  consequence 
was,  that  if  a  disseisor  ousted  the  feoffee  to  use,  or  his  tenant, 
equity  could  furnish  no  relief,  and  it  became  the  duty  of  the 
feoffee,  in  order  to  protect  the  interest  of  his  cestui  que  use,  to 
resort  to  some  proper  form  of  action  at  law  for  the  recovery  of 
the  estate.  2 

§  1328.  What  might  be  conveyed  to  Uses.  —  All  lands  and 
hereditaments,  incorporeal  as  well  as  corporeal,  in  posses- 
sion, reversion,  or  remainder,  might  be  conveyed  by  way  of 
use.  It  was  necessary,  however,  that  the  property  conveyed 
should  be  in  esse  at  the  time,  and  capable  of  having  what 
answered  to  the  seisin  thereof,  given  instantly  and  simulta- 
neously with  the  creation  of  the  use.^  Therefore,  though  a 
man  might  convey  lands  to  another,  and  his  heirs  to  the  use 
of  a  third  person  for  years,  he  could  not  so  convey  them  if 
he  had  only  a  leasehold  interest  therein  for  years,  since  he 
had  no  seisin  to  part  with  upon  which  the  use  might  depend.* 
So,  for  the  same  reason,  no  one  could  raise  a  use  in  favor  of 
another  by  a  covenant  to  stand  seised  to  use  of  land  of  which 
he  has  no  title  or  possession.^  Nor  were  ways,  commons, 
annuities,  and  the  like,  the  subjects  of  a  use.*^ 

§  1329.  Who  might  be  Feoffees  to  Uses.  —  Any  and  all 
persons  who  could  be  feoffees  of  land  at  common  law  might 
be  feoffees  to  use,  and  were  competent  to  be  seised  accord- 
ingly, and  could  be  compelled  by  chancery  to  execute  the  use. 
This  included  infants  and  femes  covert.  But  corporations 
could  not  be  seised  to  use,  one  reason  being  that  chancery 
was  supposed  to  have  no  means  of  compelling  an  execution  of 
the  use. 7  But  it  is  now  held  generally  in  the  United  States 
that  corporations  may  be  seised  to  uses,  provided  the  same 
are  not  alien  to  the  purposes  for  which  they  were  created.^ 

1  Bac.  Law  Tracts,  319. 

2  1  Spence,  Rq.  Jur,  445. 

8  Ci-abl.,  Real  Prop.  §  1610. 

*  Crabb,  Real  Prop.  §  1612  ;  2  Bl.  Com.  331. 

6  Yelverton  v.  Yelverton,  Cro.  Eliz.  401. 

6  1  Cruise,  Dig.  340. 

7  1  Cruise,  Dig.  340  ;  Crabb,  Real  Prop.  §  1607. 

8  Ang.  &  Ames,  Corp.  c.  v.  §§  6-8. 


368  USES   PRIOR   TO   THE   STATUTE   OF   USES. 

All  persons,  including  corporations,  who  could  take  estates 
by  conveyance  at  common  law,  could  take  as  cestui^  que  use. 
But  this  did  not  extend  to  aliens.^ 

§  1330.  Equity  Rules  govern  Property  in  Uses.  —  Without 
interfering  with  the  legal  estate  which  the  feoffee  had  derived 
by  the  action  of  the  common  law,  chancery,  in  the  exercise 
of  a  power  akin  to  legislation,  compelled  him  to  exercise  his 
legal  rights  in  subordination  to  the  protection  and  enjoyment 
of  the  equitable  interest  in  another,  which  was  a  creation  of 
its  own,  and  one  not  known  to  the  common  law.^  From  uses 
being  of  an  impalpable  nature,  which  could  neither  be  pos- 
sessed nor  delivered,  in  the  sense  known  to  the  common  law, 
chancery,  in  treating  of  them,  had  no  regard  to  the  doctrine 
of  seisin,  livery,  feoffment,  tenure,  and  its  incidents,  and 
the  like. 3 

§  1331.  How  created.  —  Nor  was  any  act  of  notoriety  re- 
quired to  give  effect  to  a  use,  since  the  purposes  of  secrecy, 
for  which  uses  were  originally  adopted,  as  well  as  their 
nature,  assumed  that  no  such  notoriety  was  contemplated. 
Nor  was  any  prescribed  form  of  raising  or  declaring  a  use 
required,  an  oral  declaration  even  being  often  sufficient  for 
this  purpose,  since,  at  common  law,  no  deed  was  necessary 
in  order  to  make  a  good  feoffment,  when  accompanied  by  a 
delivery  of  possession.  But  where,  as  was  the  case  at  com- 
mon law  in  respect  to  rents  and  other  incorporeal  heredita- 
ments, a  deed  was  necessary  in  order  to  create  a  legal  estate 
therein,  it  required  a  deed  to  create  or  raise  a  use  in  the 
same.  But  deeds  declaring  or  assigning  uses  might  always 
be  kept  secret  between  the  parties  in  interest.  Any  instru- 
ment declaring  the  intention  of  the  parties  was  allowed  to  be 
binding  in  equity,  the  intention  being  the  leading  principle 
in  the  rules  governing  this  species  of  property.* 

§  1332.  Resulting  Uses.  —  Not  only  was  the  declared  inten- 
tion of  the  parties  thus  effectually  regarded  in  creating  a  use, 
but  in  numerous  cases  equity  raised  uses  where  no  intention 

1  Crabb,  Real  Prop.  §  1609  ;  Tud.  Lead.  Cas.  254. 

2  1  Speiice,  Eq.  Jur.  435  ;  1  Cruise,  Dig.  341. 

3  2  BI.  Com.  331  ;  1  Speiue,  Eq.  Jar.  451;  1  Cruise,  Dig.  341. 

<  2  BI.  Com.  331  ;  1  Speiice,  Eq.  Jur.  449;  Crabb,  Real  Pmp.  §  1614. 


USES   PRIOR   TO    THE   STATUTE   OF    USES.  369 

to  do  SO  had  been  expressed.  Especially  was  this  the  case  in 
respect  to  what  are  called  resulting)  uses.  The  difference 
between  common  law  and  equity  in  this  respect  was  this :  by 
the  former,  if  one  made  a  feoffment  of  his  land  without  fraud, 
a  sufficient  consideration  was  presumed ;  and  if  the  grant  was 
by  deed,  it  was  all  the  evidence  of  a  consideration  that  was 
required;^  but  equity  presumed  that  no  man  intended  to  part 
with  a  beneficial  interest  in  his  estate  without  some  con- 
sideration. And_if  he  made  a  feoffment  without  considera- 
tion, and  without  declaring  to  whose  use  the  land  should  be 
held,  equity  presumed  he  intended  to  reserve  the  benefit 
thereof  to  himself,  and  accordingly  raised  a  use  in  his  own 
favor.  This  was  called  a  resulting  use,  as  it  resulted  back  to 
the  feoffor  himself.^  Indeed,  so  common  did  uses  become, 
that  a  conveyance  of  the  legal  estate  ceased  to  imply  an  inten- 
tion that  the  feoffee  should  enjoy  the  beneficial  interests 
therein.  And  if  no  intent  to  the  contrary  was  expressed, 
or  no  consideration  was  proved  or  implied,  the  use  always 
resulted  to  the  feoffor.  And  if  a  part  only  of  the  use  was 
expressed,  the  balance  thereof  remained  in,  or  resulted  to,  the 
feoffor.^  So  strong  was  the  disposition  of  chancery  to  have 
the  use  of  lands  follow  the  equitable  ownerships,  irrespective  of 
the  form  in  which  the  legal  title  to  the  same  stood,  that  if 
a  person  purchased  and  paid  for  an  estate,  and  took  the  title 
thereof  to  a  third  person,  a  use  thereupon  resulted  in  favor  of 
the  purchaser,  with  this  exception,  that  if  a  father,  in  the 
name  of  a  child,  purchased  an  estate,  it  was  presumed  to  be 
to  the  use  of  the  child  in  the  way  of  an  advancement.*  And 
it  is  said  that  the  two  cases  of  resulting  uses  above  mentioned 
are  the  only  ones  knowni  to  the  law.^ 

§  1333.     Express    Use  sustained  without    Consideration-  —  If, 
however,  there  was  a  conveyance  of  land  by  feoffment  or  in 

1  Crabb,  Real  Prop.  §  1614;  1  Spence,  Etj.  Jur.  451;  Lloyd  v.  Spillet,  2  Atk. 
150  ;  Bac.  Law  Tracts,  310. 

2  Perkins,  §  553  ;  2  Bl.  Com.  331. 

3  2  Rolle,  Abr.  781,  F ;  Co.  Lit.  23  a  ;  Lloyd  v.  Spillet,  2  Atk.  150 ;  Bac.  Law- 
Tracts.  317  ;  1  Spence,  Ecj.  Jur.  451. 

*  In  New  York  the  same  rule  applies  in  favor  of  a  wife,  when  a  husband  pur- 
chases in  her  name.     Welton  v.  Divine,  20  Barb.  9. 

6  1  Spence,  Eq.  Jur.  452  ;  Lloyd  v.  Spillet,  2  Atk.  150. 
VOL.  II.  —  24 


^ 


\ 


370  USES    PRIOR   TO   THE    STATUTE    OF    USES. 

a  form  which  operated  a  transmutation  of  the  possession 
from  the  grantor  to  the  grantee,  with  a  declaration  of  a  use 
in  favor  of  some  third  person,  the  use  would  be  sustained, 
though  no  consideration  therefor  were  stated  or  proved.^ 

§  1334.  No  Resulting  Use  if  Consideration  paid.  —  If  a  feof- 
fee paid  a  valuable  consideration,  however  small,  for  a  con- 
veyance, it  raised  a  use  in  his  favor.  Nor  was  it  necessary 
that  the  consideration  should  be  stated  in  the  deed ;  for 
whether  any  and  what  consideration  was  paid  might  be 
proved,  whether  expressed  therein  or  not,  unless  it  was  re- 
pugnant to  that  which  was  expressed.^  But  no  use  could 
be  averred  between  the  parties  contrary  to  that  which  was 
expressed  upon  the  face  of  the  instrument,  or  was  implied  by 
law.^  Nor  where  a  consideration  was  expressed  could  the 
grantor  negative  the  fact,  in  order  to  impeach  the  deed,  in 
the  absence  of  fraud.'*  Considerations  were  then,  as  now, 
divided  into  two  classes,  —  good  and  valuable.  A  good  con- 
sideration is  one  raised  by  the  relationship  of  marriage  or  of 
blood,  within  the  degrees  of  nephew  or  cousin.  A  valuable 
consideration  is  either  money  or  something  that  is  money's 
worth.  The  latter  will  support  a  use  in  favor  of  a  stranger: 
the  former  will  support  one  in  favor  of  such  relations  as  are 
above  indicated,  if  it  is  declared  in  a  sufficient  and  proper 
form.^ 

§  1335.  What  Declarations  of  Use  enforced.  —  But  as  equity 
would  not  enforce  a  mere  gratuity,  if  one  having  the  legal 
interest,  without  consideration  and  without  a  transmutation 
of  the  possession  of  the  land,  made  a  declaration  of  a  use  in 
favor  of  another,  equity  would  not  enforce  it.     But  if  there 

1  Lloyd  V.  Spillet,  2  Atk.  150  ;  2  Bl.  Com.  329  ;  1  Spence,  Eq.  Jur.  449  ;  Crabb, 
Keal  Prop.  §  1614  ;  Calthrop's  case,  F.  Moore,  102. 

2  Crabb,  Real  Prop.  §  1614  ;  2  Bl.  Com.  329  ;  Tad.  Lead.  Cas.  255  ;  1  Spence, 
Eq.  Jur.  451.  See  post,  §  1387  ;  Wilkinson  v.  Scott,  17  Mass.  249,  257;  Griswold 
V.  Messenger,  6  Pick.  517;  Morse  v.  Shattuck,  4  N.  H.  229;  Pritchard  v.  Brown, 
id.  397  ;  Shephard  v.  Little,  14  Johns.  210  ;  Maigley  v.  Hauer,  7  Johns.  341  ; 
Boyd  V.  M'Lean,  1  Johns.  Ch.  582. 

3  1  Spence,  Eq.  Jur.  451;  Lewis  v.  Lewis,  2  Rep.  in  Chanc.  77;  Lewin, 
Trusts,    27. 

*  3  Wood,  Conv.  285 ;  1  Greenl.  Ev.  §  26,  note,  for  the  American  law ;  Wilt 
V.  Franklin,  1  Binn.  518. 
6  1  Spence,  Eq.  Jur.  450. 


USES    PRIOR   TO    THE   STATUTE   OF   USES.  371 

was  a  consideration,  a  declaration  of  a  use  would  be  enforced, 
though  it  was  made  by  parol,  even  where  there  was  no  trans- 
mutation of  possession  on  the  part  of  the  one  declaring  the 
use.^  It  was  upon  this  principle,  as  will  be  shown  hereafter, 
that  bargains  and  sales,  and  covenants  to  stand  seised,  as 
modes  of  conveying  lands,  depended  for  their  origin  and 
validity.  And  it  may  also  be  remarked,  in  passing,  that 
ordinary  deeds  in  modern  use  avoid  the  effect  of  raising  a 
resulting  use  in  favor  of  the  grantor,  first,  by  inserting  therein 
an  acknowledgment  of  a  consideration  received  by  the  grantor ; 
and,  second,  by  declaring  thereby  the  uses  of  the  estate 
granted  in  favor  of  the  grantee,  and,  if  in  fee,  of  his  heirs 
and  assigns. 

§  1336.  Rules  of  Law  applied  to  Uses.  —  As  uses  were  alto- 
gether within  the  cognizance  of  chancery,  its  courts  were  at 
liberty  to  accept  or  reject  the  rules  of  the  common  law  in 
respect  to  an  entity  as  abstract  as  that  of  uses.  In  fact,  they 
applied  to  them  the  rules  of  the  common  law  in  many  re- 
spects, and  in  others  they  adopted  rules  more  favorable  to 
their  easy  and  unembarrassed  alienation. ^  Thus  they  were 
descendible  like  real  estate,  agreeably  to  the  rules  of  the 
common  law.^  But  words  of  limitation  to  heirs  were  not 
necessary  in  creating  estates  of  inheritance  in  uses.  One 
might  have  as  absolute  property  in  a  use  without  words  of 
inheritance  as  he  could  have  had  in  a  chattel ;  and,  at  his 
death,  the  same  might  go  to  his  heirs  like  real  estate.* 

§  1337.  Uses  devisable.  —  Although  lands  were  devisable 
by  the  Saxon  laws,  they  ceased  to  be  so  under  the  feudal  sys- 
tem introduced  by  William.  Nor  were  they  again  made  so 
by  law  until  the  statute  of  wills,  32  Hen.  VIII.^  But,  in  chan- 
cery, uses  were  always  devisable ;  and  it  was  in  that  way  that 
the  disability  at  common  law  in  this  respect  was  obviated. 
The  will  of  a  cestui  que  use  was  deemed  by  chancery  to  be  a 
declaration  of  the  use,  and  the  feoffee  to  use  was  accordingly 

1  1  Spence,  Eq.  Jur.  450. 

2  Madd.  Ch.  251. 

8  1  Spence,  Eq.  Jur.  454 ;  2  Bl.  Com.  329. 

*  Tud.  Lead.  Cas.  253 ;  1  Spence,  Eq.  Jur.  452  ;  1  Cruise,  Dig.  343 ;  Cornish, 
Uses,  19. 

6  6  Cruise,  Dig.  3,  4. 


372  USES   PRIOR   TO    THE   STATUTE   OF   USES. 

compelled  to  convey  the  land  to  the  use  as  thus  declared.^ 
Thus,  if  one  seised  of  lands  enfeoffed  A  B  of  them  to  the  use 
of  the  feoffor,  the  latter  might,  by  his  last  will,  declare  this 
use  in  favor  of  any  person  whom  he  wished  to  make  his 
devisee,  and  equity  came  in  and  gave  effect  to  the  will  accord- 
ingly.2  Or  the  cestui  que  use  might,  by  his  will,  devise  that 
the  feoit'ee  should  convey  the  estate  to  the  person  named  as 
the  object  of  the  testator's  bounty,  and  chancery  would  en- 
force the  direction.  So  one  might  make  a  feoffment  of  his 
lands  to  the  use  of  his  last  will  and  testament,  or  of  such 
person  as  he  should  appoint  by  his  last  will,  and  the  use  in 
the  mean  time  would,  in  such  case,  result  to  himself. ^ 

§  1338.  Uses  were  alienable,  although,  in  many  respects, 
resembling  choses  in  action,  which  were  not  assignable  at 
common  law.^  But  though  usually  in  possession  of  the  lands, 
the  cestui  que  use  could  not  alien  the  legal  estate  in  the  same 
without  being  joined  by  his  trustee,  his  possession  being  re- 
garded in  law  as  a  mere  tenancy  at  will  under  his  trustee  or 
feoffee  to  use.^  No  deed  was  required  in  aliening  a  use,  nor 
any  instrument  in  writing,  but  merely  that  there  should  be  a 
direction  from  the  cestui  que  use  to  his  trustee,  since  there 
could  be  no  such  thing  as  a  livery  of  seisin.^  Or  this  might 
be  done  by  any  species  of  deed  or  writing,  and  the  trustee 
was  bound  to  obey  immediately  any  direction  he  should  re- 
ceive from  his  cestui  que  use.'' 

§  1339.  Use,  how  severed  from  Legal  Estate.  —  Though  the 
most  usual  mode  of  separating  the  use  from  the  legal  estate 
was  by  feoffment  to  use,  there  were  methods  of  doing  this 
by  conveying  the  use,  separate  and  distinct  from  the  legal 
estate,  by  one  who  had  them  united  in  himself.     Thus,  where 

1  2  Bl.  Cora.  329  ;   Co.  Lit.  271  b,  Butler's  note,  231. 

2  2  Bl.  Com.  329. 

3  Crabb,  Real  Prop.  §  1616 ;  Co.  Lit.  112,  133  ;  Co.  Lit.  271  h,  Butler's  note, 
231;  Sir  Edw.  Clare's  case,  6  Rep.  17  6;  Co.  Lit.  112  a,  n.  142;  Tud.  Lead. 
Cas.  268. 

*  Cornish,  Uses,  19. 

6  2  Bl.  Com.  331. 

6  1  Spence,  Eq.  Jur.  454  ;  Crabb,  Real  Prop.  §  1614. 

^  1  Cruise,  Dig.  342.  By  the  seventh  section  of  the  statute  of  frauds,  29  Car. 
II.  c.  3,  all  declarations  or  creations  of  trusts  or  confidence  were,  for  the  first  time, 
required  to  be  proved  by  some  writing. 


USES   PRIOR   TO    THE   STA.TUTE   OF   USES.  373 

the  owner  of  land  contracted  to  sell  or  lease  it  for  a  valuable 
consideration  paid  him,  cliancery  regarded  him  as  a  trustee, 
holding  the  estate  to  the  use  of  the  bargainee  in  fee  or  for 
years,  according  to  the  terms  of  the  agreement,  though  no 
deed  had  passed,  and  no  words  of  inheritance  were  made  use 
of  in  making  the  bargain.  And  the  same  effect  was  given  to 
an  agreement  to  settle  an  estate  for  the  benefit  of  a  blood  rela- 
tion, without  any  valuable  consideration  being  paid;  chancery 
treating  the  holder  of  the  land,  in  such  case,  as  a  trustee  of 
the  person  on  whom  he  agreed  to  settle  it,  without  requiring 
any  formal  conveyance  to  be  made.  By  holding  the  person  to 
whom  the  legal  estate  belonged,  in  the  above  cases,  to  be  a 
trustee  of  the  party  to  be  benefited,  chancery  was  able  to  carry 
out  the  agreement,  though  the  common  law  did  not  regard  it 
as  a  binding  contract,  and  no  trust  had  been  formally  de- 
clared. The  use  became  separated  from  the  legal  estate,  and 
became  the  subject  of  transfer  by  itself,  as  has  heretofore 
been  stated. ^  Nor  did  chancery  stop  there,  but  held  the  per- 
son in  whom  was  the  legal  estate  trustee  of  whoever  was 
entitled  to  it,  in  all  cases  where  such  estate  had  been  acquired 
by  fraud  or  accident. ^ 

§  1340.  Various  Limitations  of  Uses.  —  A  use,  when  oncc 
raised,  might  be  granted  or  devised  in  fee,  in  tail,  for  life 
or  for  years. ^  Uses  might  also  be  raised  or  created  in  favor 
of  the  person  intended  to  have  the  benefit  thereof,  in  various 
modes  unknown  to  and  at  variance  with  the  common  law ;  as, 
for  instance,  in  favor  of  one  not  a  party  to  the  deed  conveying 
the  estate.*  So  a  fee  might  be  limited  to  one,  which,  upon 
the  happening  of  some  event,  should  shift  over  to  another  in 
fee.^  Or  the  use  might  be  limited  to  spring  up  and  take 
effect  as  a  freehold  estate  in  futuro.^     This  was  the  origin  of 

^  1  Spence,  Eq.  Jur.  452,  453.  It  is  hardly  necessary  to  add,  that  these  modes 
of  transferring  a  use  gave  rise  to  the  conveyances  under  the  statute  by  bargain  and 
sale,  and  covenant  to  stand  seised,  and  the  like. 

2  1  Spence,  Eq.  Jur.  453. 

^  1  Spence,  Eq.  Jur.  455. 

*  Bac.  Law  Tracts,  310,  311  ;  1  Cruise,  Dig.  343  ;  1  Spence,  Eq.  Jur.  455  ; 
Cornish,  Uses,  19. 

*  Gilbert,  Uses,  Sugd.  ed.  153,  154  ;  Cornish,  Uses,  19. 
6  Gilbert,  Uses,  Sugd.  ed.  161. 


374  USES   PRIOR   TO    THE   STATUTE   OP   USES. 

shifting  and  springing  uses,  as  at  present  applied.  So  there 
might  be  a  limitation  of  a  contingent  use  by  the  way  of 
remainder  in  fee  to  a  person  not  yet  born  or  ascertained, 
without  creating  at  the  same  time  a  previous  particular  estate 
of  freehold  to  sustain  it,  which,  as  will  be  shown,  was  neces- 
sary in  such  limitations  at  common  law.^  Or  it  might  be 
so  limited  that  the  grantor  might  reserve  to  himself  or  a 
stranger  a  right,  at  a  future  time,  to  revoke  the  use  which  he 
then  declared,  and  to  limit  or  declare  new  uses  in  favor  of 
other  persons,^  which  became  the  origin  of  the  present  doc- 
trine of  powers.  And,  in  general  terms,  the  use  might  be 
limited  as  a  freehold  to  commence  in  futuro,  which  could  not 
be  done  at  common  law.^ 

§  1341.  Rules  as  to  Legal  Estates  unaffected  by  Uses.  —  But 
it  should  be  observed,  that  all  these  things  might  have  been 
done  before  the  statute,  without  doing  violence  to  any  rule  of 
the  common  law  as  to  the  seisin  of  a  freehold  in  the  legal 
estate,  since  the  limitation  of  uses  was  but  a  direction  in 
equity  to  the  feoffee  or  trustee  who  continued  to  hold  the 
seisin  and  fulfil  the  tenure  of  the  legal  estate;  and  that  was 
all  that  was  heeded  by  the  common  law.* 

§  1342.  Peculiarities  in  Conveyances  to  Uses.  —  Among  the 
peculiarities  in  conveyances  of  uses,  as  compared  with  those 
of  estates  at  common  law,  was  this,  that  a  husband  might 
create  a  use  in  favor  of  his  wife,  out  of  his  own  estate,  by 
enfeoffing  another  to  her  use,  or  by  a  covenant  with  another 
to  stand  seised  to  her  use.^  So  uses  might  be  raised  in  favor 
of  several  persons,  to  come  into  the  enjoyment  thereof  at 
successive  periods,  and  yet  all  be  joint  tenants  thereof,  as  soon 
as  the  use  should  take  effect.^ 

§  1343.  Uses  had  no  Incidents  of  Tenure.  —  Such  of  the 
incidents  of  common-law  estates  as  grew  out  of  the  doctrine 

1  Shelley's  case,  1  Rep.  101  ;  Gilbert,  Uses,  Sugd.  ed.  164  ;  Cornish,  Uses,  19. 
But  a  different  rule  prevails  under  the  statute.  Gilbert,  Uses,  Sugd.  ed.  165; 
Adams  v.  Savage,  2  Salk.  679  ;  Chudleigh's  case,  1  Rep.  135  ;  Fearne,  Cont.  Rem. 
284;  post,  §  1373. 

2  1  Spence,  455  ;    Gilbert,  Uses,  Sugd.  ed.  165;  Tud.  Lead.  Gas.  254. 

3  1  Cruise,  Dig.  343- 

*  1  Spence,  Eq.  Jur.  455. 

5  1  Spence,  Eq.  Jur.  456  ;   Co.  Lit.  112  ;   Thatcher  v.  Omans,  3  Pick.  521. 

^  1  Speuce,  Eq.  Jur.  456. 


USES  PRIOR  TO  THE  STATUTE  OF  USES.         375 

of  feudal  seisin  and  tenure  could  not  obviously  have  belonged 
to  uses,  since  seisin  could  not  be  predicated  of  a  mere  ideal 
abstraction,  impalpable  to  the  senses,  and  known  only  to 
equity.  A  cestui  que  use  could  not,  accordingly,  be  disseised, 
or  dispossessed  of  his  use  by  another.  So  neither  curtesy  nor 
dower  could  be  had  in  a  use.  This  led  to  the  introduction 
of  jointures,  as  has  already  been  stated.^  Nor  were  uses  sub- 
ject to  the  burdens  of  tenure,  nor  to  be  levied  upon  for  the 
debt  of  the  cestui  que  use.  Nor  could  purchasers,  either  from 
feoffees  or  cestuis  que  use^  be  assured  of  a  title  to  what  they 
purchased. 2  Another  incident  of  uses  was  that,  at  common 
law,  like  conditions  or  mere  rights  of  action,  they  were  not 
forfeited  to  the  king  upon  attainder  of  treason,  notwithstand- 
ing such  attainder  extended  to  lands  and  tenements.  This 
led  to  the  statute  of  33  Hen.  VIII.  c.  20,  §  2,  whereby  uses, 
rights,  conditions,  etc.,  are  declared  forfeited  upon  attainder 
for  treason,^ 

§  1344.  How  Uses  may  be  lost.  —  A  use  depended  upon  a^ 
privity  of  estate  between  the  feoffee  and  cestui  que  use  in 
respect  to  the  lands  out  of  which  the  use  was  to  arise,  and  a 
privity  of  person  also,  or  a  confidence  between  these  parties 
touching  the  land.^  If,  then,  this  privity  were  destroyed 
between  him  who  held  the  seisin  or  possession  of  the  land 
and  him  who  claimed  the  use,  the  use  was  defeated  or  sus- 
pended, as  the  case  might  be,  until  the  privity  was  restored^ 
And  it  should  be  remembered,  that,  as  to  all  the  world  but 
the  cestui  que  use,  the  feoffee  was  the  real  owner  of  the  fee  to 
all  intents,  so  that  his  Avife  was  entitled  to  dower,  his  lord 
to  his  escheat,  and  the  like:  if,  therefore,  the  feoffee  were 
disseised  or  an  abator  entered,  or  a  tenant  in  dower,  or  by 
curtesy,  or  elegit,  or  a  purchaser  without  notice  and  for  a 
valuable   consideration,   became   possessed   of  the    land,   the 

1  Ante,  §  494. 

2  Bac.  Law  Tracts,  330  ;  1  Spence,  Eq.  Jur.  456,  460  ;  Gilbert,  Uses,  Siigd. 
ed.  137  ;  2  Bl.  Com.  331  ;  Cornish,  Uses.  20  ;  Perkins,  §  457;  Crabb,  Real  Prop. 
§  1618. 

8  Jackson  d.  Gratz  v.  Catlin,  2  Johns.  261 ;  Cudleigh's  case,  1  Rep.  121  ;  Tad. 
Lead.  Cas.  253. 

*  Gilb.  Uses,  Sngd.  ed.  376 ;  Lewin,  Trusts,  2 ;  Tud.  Lead,  Cas.  254  ;  Co.  Lit. 
2726,  Butler's  note,  231,  §2. 


376  USES    PRIOR   TO    THE    STATUTE   OF    USES. 

privity  of  the  feoffee  with  the  cestui  que  use  as  to  such  tenant 
was  destroyed,  and  the  use  was  lost.  But  if  the  tenant  came 
in  under  the  feoffee,  as  by  descent  or  by  purchase,  with  a 
knowledge  of  the  use,  or  without  having  paid  a  consideration, 
there  would  still  be  such  a  privity  and  confidence  between 
him  and  the  cestui  que  use  that  the  use  would  be  saved,  and 
chancery  would  compel  its  execution.  ^ 

§  1345.  Privity  and  Confidence  explained.  —  The  language 
of  Baron  Gilbert,  in  his  treatise  on  uses  above  cited,  con- 
tains perhaps  as  clear  an  explanation  of  this  subject  as  can 
readily  be  found.  "It  may  be  asked  what  this  privity  of 
estate  is  that  is  requisite  to  the  standing  seised  to  a  use  ? 
And  it  is  where  a  person  comes  into  the  same  estate  as  the 
feoffee  to  uses  had  in  and  by  contract  with  him ;  for  a  dis- 
seisor comes  into  the  same  estate,  but  not  by  contract  and 
agreement,  and  therefore  he  is  in  the  j^ost,  i.  e.  claims  not  by 
or  from  the  feoffee.  And  why  a  privity  of  estate  is  requisite 
to  the  standing  seised  to  a  use,  in  general,  is  because  he  who 
comes  not  in  privity  of  estate  claims  not  the  estate  by  and 
from  the  feoffee  who  stood  seised  to  the  use,  and  consequently 
claims  not  the  estate,  as  it  was  subject  to  the  uses,  but  one 
above  that,  free  and  clear."  —  "Why  should  a  man  stand 
seised  to  a  use  when  he  claims  not  the  estate  by  agreement 
with  him  that  did  stand  seised,  or  has  not  the  estate  that  was 
charged  to  the  use  ?  For  confidence  in  the  person  is  as  well 
requisite  as  privity  of  estate. "  —  "  Confidence  in  the  person  is 
either  express  or  implied;  and  if  that  fails,  the  use  is  gone; 
as  if  a  feoffee  to  a  use  for  a  good  consideration  doth  enfeoff 
one  who  hath  not  notice  of  the  use,  the  use  is  gone,  for  here 
is  no  trust  in  him."  —  "But  if  he  had  notice,  a  trust  might 
well  be  said  to  be  reposed  in  him,  because  he  took  the  land 
knowingly  with  the  uses. "  The  reader  will  hereafter  remark 
the  similarity  of  the  old  law  of  uses  in  this  respect  and  the 
modern  law  of  trusts.  Attempts  were  made  from  time  to 
time,  by  legislation  in  England,  to  obviate  some  of  the  mis- 

^  1  Spence,  Eq.  Jur.  456  ;  Hopkins  v.  Hopkins,  1  Atk.  581  ;  Cholmondeley  v. 
Clinton,  2  Meriv.  358,  360  ;  Crabb,  Real  Prop.  §  1606  ;  Cornish,  Uses,  17;  Lewin, 
Trusts,  3,  4 ;  Burgess  v.  Wheate,  1  W.  Bl.  156  ;  Cudleigh's  case,  1  Rep.  120,  122  6  ; 
Co.  Lit.  271  b,  Butler's  note,  231,  §  2  ;   Gilb.  Uses,  Sugd.  ed.  377,  378. 


USES    PRIOR   TO    THE   STATUTE    OF   USES.  377 

chiefs  which  were  supposed  to  result  from  the  multiplication 
of  secret  trusts,  subject  to  which  the  lands  of  the  kingdom 
were  held.  Among  the  acts  passed  for  that  purpose  were  the 
statutes  2  Rich.  TI.  c.  23,  15  Rich.  II.  c.  5,  1  Rich.  III.  c.  1, 
and  50  Edw.  III.,  to  which  the  reader  may  refer.  But  these 
all  gave  place  to  the  famous  statute  of  27  Hen.  VIIL,  called 
"The  Statute  of  Uses." 


378  USES   AFTER   THE   STATUTE   OF   USES. 


CHAPTER   LVI. 

USES   AFTER   THE   STATUTE   OF   USES. 

§  1346.  Purpose  of  the  statute. 

1347.  Effects  produced  by  the  statute. 

1348.  Provisions  of  the  statute. 

1349.  Effect  of  the  statute  upon  devises. 

1350.  Construction  of  the  statute. 

1351.  Three  things  must  concur  to  give  the  statute  effect. 

1352.  Who  may  be  seised  to  a  use. 

1353.  What  property  is  within  the  statute. 

1354.  Quantity  of  the  estate  of  a  feoffee  to  uses. 

1355.  If  the  feoffee  and  cestui  que  use  be  the  same  person. 

1356.  Cestui  que  use  in  esse  essential. 

1357.  Who  may  be  cestui  que  use. 

1358.  How  limitations  made  to  cestuis  que  xise. 

1359.  Terms  by  which  uses  are  created. 

1360.  Where  feoffee  may  take  as  cestui  que  use. 

1361.  Conveyances,  impossible  at  common  law,  became  possible  under  statute. 

1362.  Contingent  remainders  by  way  of  uses. 

1363.  A  use  in  esse  necessary. 

1364.  When  and  how  uses  are  executed. 

1365.  Seisin  transferred  by  executing  a  use. 

1366.  Statute  guards  against  merger  as  to  feoffee. 

1367.  Union  of  common  law  with  uses  by  the  statute. 

1368.  Of  uses  to  commence  in  faturo. 

1369.  Freeholds  infuturo  raised  by  uses. 

1370.  As  to  freeholds  infuturo  by  bargain  and  sale. 

1371.  By  bargain  and  sale,  continued. 

1372.  Powers  reserved  by  means  of  uses. 

1373.  Future  and  contingent  uses. 

1374.  Some  future  uses  treated  as  remainders. 

1375.  Enrolment  of  deeds  of  bargain  and  sale. 

1376.  Modes  of  conveying  lands  by  means  of  uses. 

1377.  Conveyances  by  transmutation  of  possession. 

1378.  Without  transmutation  — Bargain  and  sale. 
-    1379.  Covenant  to  stand  seised. 

1380.  Of  the  considerations  to  support  convej'ances. 

1381.  Covenant  must  not  be  executory. 
v/    1382.  Lease  and  release!! 

1383.  Lease  and  release  in  the  United  States. 

1384.  Formalities  in  declaring  uses. 

1385.  Of  uses  resulting  by  implication. 

1386.  Examples  of  resulting  uses. 


USES    AFTER   THE   STATUTE   OF   USES.  379 

§  1387.  What  consideration  prevents  use  from  resulting. 

1388.  Declaration  of  use  prevents  a  resulting  use. 

1389.  Uses  only  result  to  the  original  owner. 

1390.  Uses  limited  as  they  would  result  are  void. 

1391.  Presumption  of  resulting  use  rebuttable. 

1392.  Parol  evidence  to  rebut  resulting  use. 

1393.  No  use  results  if  one  expressed. 

1394.  Doctrine  of  uses  applied  to  devises. 

1395.  No  resulting  use  for  lack  of  consideration. 

1396.  If  use  fails  it  results. 

1397.  How  uses  may  be  destroyed  or  suspended. 

1398.  Importance  of  uses  in  conveyancing. 

1399.  How  uses  are  prevented  from  resulting. 

1400.  General  api)lication_of  uses  in  conveyancing. 
,1401.  Where  resort  has  been  had  to  the  doctrine  of  uses. 

§  1346/  Purpose  of  the  Statute.  —  The  purpose  of  the  statute 
of  uses  is  said,  by  some  authors,  to  have  been  entirely  to 
abolish  uses.^  Another  writer  states  it  to  have  been  to  abol- 
ish altogether  the  jurisdiction  of  the  court  of  chancery  over 
landed  estates  ;2  while  Bacon,  and  in  this  he  is  sustained  by 
Mr.  Sugden  and  others,  maintains  the  same  idea  by  insisting 
that  the  purpose  was  to  turn  equitable  into  legal  estates.^ 

§  134'^  Effects  produced  by  the  Statute.  —  Whatever  may 
have  been  the  intention  of  the  framers  of  the  statute,  its  prac- 
tical effect,  under  the  construction  given  to  it  by  the  courts 
of  both  law  and  equit}',  was  to  produce  a  great  revolution  in 
the  transfer  and  modification  of  landed  property;  and  while 
it  accomplished  on  the  one  hand  the  idea  of  turning  equitable 
into  legal  estates,  it  instituted  on  the  other  a  complete  system 
of  equitable  estates,  more  efficient,  if  possible,  than  that 
which  it  professed  to  abolish.^  And,  as  the  subject  develops 
itself,  it  will  be  found  to  justify  the  language  of  Lord  Bacon, 
that  "it  is  the  statute' which  of  all  other  hath  the  greatest 
power  and  operation  over  the  heritages  of  the  realm.  "^  Mr. 
Williams,  however,  remarks  that  "all  that  was  ultimately 
effected  by  the  statute  of  uses  was  to  import  into  the  rules 

1  1  Cruise,  Dig.  349  ;  Gilb.   Uses,  74;  Chudleigh's  case,  1  Kep.  124  ;  Co.  Lit. 
271  ;  Butler's  note,  231,  §  3. 

2  Wms.  Real  Prop.  133. 

3  Bac.  Law  Tracts,  332  ;  Gilb.  Use.s,  Sugd.  ed.  139,  note  ;  Sand.  Uses,  86,  87. 
*  Tud.  Lead.  Cas.  2.57  ;  Co.  Lit.  271  6,   Butler'a  note,  231,  §  2  ;  1  Prest,  Abst. 

311. 

6  Bac.  Law  Tracts,  324. 


C80  USES    AFTER   THE    STATUTE   OF   USES. 

of  law  some  of  the  then  existing  doctrines  of  the  courts  of 
equity,  and  to  add  three  words,  to  the  use,  to  every  convey- 
ance. "^  And  Lord  Hardwicke  says:  "A  statute  made  upon 
great  consideration,  introduced  in  a  solemn  and  pompous 
manner,  by  a  strict  construction  has  had  no  other  effect  than 
to  add  at  most  three  words  to  a  conveyance.  "^  Yet  the  lan- 
guage of  Mr.  Preston  is  not  too  strong  when  he  says:  "Within 
the  whole  scope  of  the  learning  more  peculiarly  belonging  to 
the  province  of  the  conveyancer,  none  is  more  important  to 
be  known  than  that  which  concerns  the  doctrine  of  uses;  for 
there  are  many  things  which  may  be  done  through  the  medium 
of  a  conveyance  to  uses  which  cannot  be  accomplished  by  a 
conveyance  merely  and  simply  at  the  common  law."^ 

§  1348.  Provisions  of  the  Statute.  —  The  act  bears  date 
A.  D.  1535,  and  forms  the  tenth  chapter  of  the  statute  27 
Hen.  VIII.  But  it  was  many  years  before  the  courts  had 
wrought  out  from  it,  by  construction,  the  modern  system  of 
trusts  and  conveyances.  Bacon  remarks,  that  "the  law  began 
to  be  reduced  to  a  true  and  sound  exposition  "  in  Chudleigh's 
case,  37  Eliz.  (a.  d,  1595).^  Lord  Nottingham,  who  was 
Chancellor  in  1676,  is  said  to  have  done  much  in  placing 
trusts  upon  their  true  foundations.^  It  is  easy,  therefore,  to 
understand  the  applicability  and  force  of  the  language  of 
Lord  Bacon,  who  was  Chancellor  in  1617,  where  he  describes 
it  as  "a  law  whereupon  the  inheritances  of  this  realm  are 
tossed,  at  this  day,  like  a  ship  upon  the  sea,  in  such  sort  that 
it  is  hard  to  say  which  bark  will  sink,  and  which  will  get  to 
the  haven;  that  is  to  say,  what  assurances  will  stand  good, 
and  what  will  not."^  The  act  contains  a  preamble  and  eigh- 
teen sections,  and  is  styled  "An  Act  concerning  Uses  and 
Wills."  The  preamble  recites,  that,  by  common  law,  lands, 
etc.,  are  not  devisable,  and  ought  not  to  be  transferred  but  by 
solemn  livery,  matter  of  record,  etc.,  without  covin.  Yet 
by  subtle  inventions,  etc.,  they  have  been  conveyed,  etc.,  by 

1  Wms.  Eeal  Prop.  133. 

2  Hopkins  v.  Hopkins,  1  Atk.  591.     But  see  Sand.  Uses,  265. 
8  2  Prest.  Conv.  474. 

*  Bac.  Law  Tracts,  300. 
'  1  Spence,  Eq.  Jur.  494. 
6  Bac.  Law  Tracts,  299. 


USES  AFTER  THE  STATUTE  OP  USES.  381 

assurances  craftily  made,  and  secret  uses,  interests,  and 
trusts;  and  also  by  wills,  sometimes  by  words,  sometimes  by 
writing,  by  reason  of  which  heirs  have  been  disinherited, 
lords  have  lost  their  wards,  marriages,  aids,  etc.  ;  persons 
purchasing  lands  could  not  know  their  title;  husbands  lost 
curtesy,  widows  dower,  the  king  had  lost  the  j)rofits  of  at- 
tainder, etc.,  "to  the  utter  subversion  of  the  ancient  common 
law  of  this  realm."  It  then,  "for  the  extirping  and  extin- 
guishment of  all  such  subtle  practised  feoffments,"  "to  the 
intent  that  the  king's  highness,  or  any  other,  his  subjects  of 
this  realm,  shall  not  in  any  wise  hereafter,  by  any  means  or 
inventions,  be  deceived,  damaged,  or  hurt  by  reason  of  such 
trusts,  uses,  or  confidences,"  proceeds  to  enact,  that  when 
any  persons  stand  seised,  or  shall  happen  to  be  seised,  of  or 
in  any  honors,  castles,  manors,  lands,  tenements,  rents,  ser- 
vices, reversions,  remainders,  or  other  hereditaments,  to  the 
use,  confidence,  or  trust  of  any  other  person,  etc.,  such  person 
shall  stand  and  be  seised  of  such  hereditaments,  to  all  intents 
and  purposes  in  the  law  "of  and  in  such  like  estates,  as  they 
had  or  shall  have  in  use,  trust,  or  confidence  in  the  same; 
and  that  the  estate,  right,  and  possession  of  the  person  seised 
shall  be  deemed  and  adjudged  to  be  in  him  or  them  that  have 
such  use,  confidence,  or  trust,  after  such  qualit?/,  mannery 
farm,  and  condition  as  they  had  before  in  or  to  the  use." 

^§  1349.  Effect  of  the  Statute  upon  Devises.  —  The  simple 
remedy  proposed  for  the  long  train  of  evils  recited  in  the 
preamble  was  to  destroy  the  estate  of  the  feoffee  to  use,  and 
to  transfer  it  by  the  very  act  that  created  it  to  the  cest^ii  que 
use,  as  if  the  seisin  or  estate  of  the  feoffee,  together  with  the 
use,  had,  una  flatu,  passed  from  the  feoffor  to  the  cestui  que 
use.  But  it  became  necessary,  in  order  to  guard  against 
widows  of  cestuis  que  use  taking  dower  in  addition  to  their 
jointures  where  those  had  been  settled  upon  them,  as  was 
explained  in  a  former  chapter,  to  insert  a  clause  to  that 
effect  (§  6).i  As  by  the  form  of  this  statute,  the  seisin  by 
which  alone  the  use  could  be  supported  was  taken  out  of  the 
feoffee,  and  passed  at  once  to  the  cestui  que  use,  it  ceased  to 
be  possible  to  devise  lands  in  any  of  the  forms  mentioned  in 

1  Jnte,  §§  494,  1343  ;  Bac.  Law  Tracts,  344. 


382  USES   AFTER   THE    STATUTE   OF    USES. 

a  former  section;  and  they,  in  fact,  thereby  became  undevis- 
able,  and  remained  so  until  the  statute  of  wills,  32  Hen.  YIIl.^ 
§  1350.  Construction  of  the  Statute.  —  It  might  have  been 
supposed,  that,  as  the  statute  was  a  remedial  one,  it  would 
have  received  a  liberal  construction,  with  a  view  of  carrying 
out  the  professed  objects  stated  in  the  preamble ;  whereas,  in 
fact,  the  opposite  course  was  adopted,  and  a  strict  construction 
was  insisted  upon.  And,  among  other  things,  the  judges 
pretended  that  the  statute  did  not  apply  to  secondary  uses,  or 
a  use  upon  use,  and  by  this  means  allowed  parties  at  pleasure 
to  evade  the  statute,  till,  instead  of  courts  of  equity  being 
deprived  of  jurisdiction  over  lands,  the  chief  control  of  real 
property  was  practically  transferred  to  those  very  courts.^ 
The  first  thing  that  strikes  one  on  examining  the  statute  is, 
that  it  retains  in  full  vigor  the  idea  of  a  legal  seisin  of  the 
estate,  in  the  same  manner  as  it  had  existed  at  the  common 
law,  and,  at  the  same  time,  expressly  recognizes  the  exist- 
ence and  continuance  of  the  very  something,  called  a  use, 
which  it  is  said  to  have  aimed  to  destroy.  And  the  operation 
of  the  statute  was  to  be  effected  by  uniting  these  two  entities ; 
fusing  them,  as  it  were,  into  one  legal  entity  or  estate.^ 
Whatever  this  estate  was,  it  should  be  remembered,  it  was  to 
be  held  after  such  quality,  manner,  and  form  and  eotidition,  as 
the  owner  of  the  use  had  before  had  in  and  to  the  use,  which 
now  drew  to  itself  the  legal  seisin  by  force  of  the  statute ; 
thus  executing  the  use,  as  it  was  called,  in  him  who  was  to 
have  the  entire  estate.  The  consequence,  as  will  be  seen, 
was  that  it  suggested  and  supplied  the  means  of  transferring 
the  legal  estates  in  lands  without  any  such  solemnity  or 
notorious  act  as  the  common  law  had  required.^  The  doc- 
trine of  uses,  drawing  to  them  the  legal  estate  of  the  owner 
who  created  or  declared  them,  is  not  limited  to  freeholds,  but 
extends  to  terms  for  years,  where  the  use  draws  to  it  the 
possession  only,  and  not  the  seisin,  but  in  such  a  manner  that 
the  "estate,  title,  right,  and  possession  that  was  in  such  per- 
sons that  were  seised  of  lands,  etc.,  to  the  use  of  any  such 

1  Bac.  Law  Tracts,  344. 

2  1  Rep.  Eng.  Com.  Real  Prop.  8. 

8  Egertoii  V.  Brownlow,  4  H.  L.  Cases,  206. 
4  Bac.  Law  Tracts,  327. 


USES    AFTER   THE    STATUTE   OP   USES.  383 

persons,  shall  be  adjudged  to  be  in  him  or  them  that  have 
such  use,"  after  such  quality,  manner,  etc.,  as  they  had  before 
in  or  to  the  use.  And  it  was  by  carrying  out  this  idea  of 
creating  an  estate  for  a  year  by  bargain  and  sale,  whereby 
a  use  for  that  time  was  raised  in  favor  of  the  bargainee,  to 
which  the  statute  annexed  the  possession,  and  thereby  created 
a  legal  estate  for  that  term,  that  the  mode  of  conveying  lands, 
long  in  use  in  England,  by  lease  and  release,  became  effect- 
ual ;  for,  in  the  words  of  Burton,  the  statute  of  uses  "  converts 
all  vested  uses  at  once  into  estates.  "^  The  English  Commis- 
sioners on  Real  Property,  in  their  report,  in  view  of  the  effect 
above  spoken  of,  state  that  the  statute  failed  to  correct  the 
practice  of  having  two  estates,  the  one  legal  in  one  man,  and 
the  other  equitable  in  another,  by  attempting  to  do  too  much. 
It  made  no  distinction  between  active,  passive,  and  construc- 
tive trusts,  and  stopped  short  of  authorizing  directly  the 
modifications  of  property  and  its  transfer,  which  had  been 
effected  through  uses,  and  were  required  by  the  wants  of 
mankind.  2 

§  1351.  Three  Things  must  concur  to  give  the  Statute  Effect: 
first,  a  person  seised  to  a  use ;  second,  a  cestui  que  use  in  esse  ; 
and  third,  a  use  in  esse,  either  in  possession,  reversion,  or 
remainder.^ 

§  1352.  Who  may  be  seised  to  a  Use.  —  All  persons  may 
be  seised  to  a  use,  including  femes  covert  and  infants,  Avho 
might  have  been  so  seised  before  the  statute,  but  none  other. 
The  words  in  the  statute  are  "person"  or  "persons."  But 
aliens  and  corporations  were  excluded,  although  a  use  would 
not  be  void  because  the  feoffee  to  such  use  was  an  alien.* 
But,  in  the  United  States,  the  word  "  persons  "  includes  bodies 
corporate ;  and  corporations  may  accordingly  be  seised  to  a 
use  or  trust,   if  the  same  is  not  foreign  to  the  purposes  of 

1  1  Spence,  Eq.  Juris.  464,  477  ;  Wms.  Real  Prop.  151  ;  Burton's  Comp.  50. 
-  Pelham's  case,  1  Rep.  Eng.  Com.  Real  Prop.  8. 

3  1  Cruise,  Dig.  349  ;  Tud.  Lead.  Cas.  258  ;  Crabb,  Real  Prop.  §  1646 ; 
Witham  v.  Brooner,  63  111.  346. 

4  1  Cruise,  Dig.  349 ;  Bac.  Law  Tracts,  334,  347,  348.  And  although,  if  an 
infant  was  feoffee  to  his  own  use  for  life,  with  a  remainder  to  the  use  of  J.  S.,  he 
might,  on  arriving  at  age,  disagree  as  to  his  own  use,  he  could  not,  by  such  dissent, 
divest  the  rights  of  the  remainder-man.  Bac.  Law  Tracts,  348.  As  to  the  statutes 
affecting  the  rights  of  aliens  to  hold  lands  in  the  United  States,  see  ante,  §  132. 


384  USES    AFTER   THE    STATUTE    OF    USES, 

their  creation.^  But  a  person  uncertain,  it  is  said,  is  not 
within  the  statute,  being  incapable  of  having  a  use  executed 
through  him  in  respect  to  an  estate.  Thus  if  I  give  land  to 
J.  S.,  the  remainder  to  the  heirs  of  J.  D,,  to  the  use  of  J.  N. 
and  his  heirs,  J.  N.  is  not  seised  of  the  fee-simple  of  an 
estate  during  the  life  of  J,  S.  till  J.  D.  be  dead,  and  then  he 
would  take  a  fee-simple.'^ 

§  1353.  What  Property  is  within  the  Statute.  —  The  statute 
embraces  every  kind  of  real  property,  whether  in  possession, 
reversion,  or  remainder,  as  well  incorporeal  as  corporeal. 
But  it  is  essential  that  it  should  be  an  estate  of  which  the 
grantor  has,  or  is  entitled  to  have,  the  seisin  at  the  time  of 
his  grant.  No  use,  therefore,  could  be  raised  by  a  covenant 
to  stand  seised  of  land,  of  which  the  covenantor  was  not  at 
the  time  seised.^  And  it  was  accordingly  held  that  a  mort- 
gagee could  not  devise  his  mortgage  interest  to  uses,  so  as  to 
be  executed  by  the  statute,  since  the  debt  was  the  principal 
thing,  and  the  mortgage  lien  would  follow  the  debt  to  whom- 
soever that  went.'^  In  other  words,  no  one  can  convey  a  use 
in  land  of  which  he  is  not  seised  in  possession,  or  to  which 
he  is  not  entitled  in  remainder  or  reversion,  at  the  time  of 
making  the  conveyance.  And  the  reason  is  quite  obvious. 
There  must  be  a  seisin  in  esse  to  pass  simultaneously  with 
the  use,  which  the  statute  can  take,  and  unite  with  the  use, 
whenever  a  conveyance  is  made,  in  order  to  bring  it  within 
the  terms  of .  the  statute;^  the  seisin  of  the  remainder-man 
being  in  the  tenant  of  the  particular  estate,  if  a  freehold,  for 
his  benefit.  This  would  exclude  annuities,  as  well  as  uses 
themselves;  so  that,  as  a  use  cannot  be  united  to  a  use,  it 
became  an  axiom  of  great  importance  in  shaping  and  adjust- 
ing the  bearing  and  application  of  the  statute,  that  "a  use 
cannot  be  limited  upon  a  use."^ 

1  United  States  v.  Amedy,  11  Wheat.  392  ;  First  Tarish  of  Sutton  v.  Cole, 
3  Pick.  240.     And  see  post,  §  1488. 

2  Bac.  Law  Tracts,  349.  The  simple  reason  for  this  would  be,  that,  so  long 
as  J.  D.  lived,  no  one  could  be  his  heir,  and  consequently  there  was  no  one  to  act 
as  the  medium  through  whom  the  seisin  was  to  pass  to  J.  N. 

8  1  Cruise,  Dig.  353  ;  Tud.  Lead.  Cas.  259. 

*  Merrill  v.  Brown,  12  Pick.  220  ;  Galliers  v.  Moss,  9  Barn.  &  C.  267. 

6  1  Cruise,  Dig.  353. 

8  Bac.  Law  Tracts,  335.     See,  as  to  rents,  Gilb.  Uses,  Sugd,  ed.  194,  n.;  Gil- 


USES    AFTER   THE    STATUTE    OF    USES.  385 

§  1354.  Quantity  of  the  Estate  of  a  Feoffee  to  Uses.  —  In 
respect  to  the  quantity  of  the  estate  which  a  feoffee  must  have 
in  order  to  give  effect  to  the  statute,  it  was  at  first  understood 
to  require  a  fee-simj)lc,  but  it  was  afterwards  held  that  a  free- 
hold estate  was  sufficient,  excluding  all  chattel  interests  in 
lands,  1  such  as  leaseholds  and  copyholds. ^  A  tenant  for  life, 
therefore,  may  be  seised  to  uses,  and  so  may  a  tenant  in  tail.^ 
But  the  use  to  which  it  is  held  can  be  of  no  larger  estate  or 
longer  duration  than  that  of  the  feoffee,  since,  without  a 
seisin  to  sustain  it,  a  use  cannot  subsist;  and  if  the  estate 
of  the  feoffee  be  for  life  onl}',  though  in  terms  to  the  use  of 
another  and  his  heirs,  the  estate  in  the  use  terminates  with 
that  of  the  feoffee.*  But  a  tenant  in  tail  is  so  far  seised  of 
the  inheritance,  that  he  may  be  seised  to  a  use  in  fee-simple.^ 

§  1355.  If  the  Feoffee  and  Cestui  que  Use  be  the  same  Person, 
he  never  takes  Uitd^r" the  statute^— but-at-  the  Gommen  la^v, 
unless  there  is  some  impossibility  in  the  way  of  his  thus 
taking.^  The  foregoing  doctrine  may  be  illustrated  by  the 
case  of  an  estate  limited  to  A,  and  B  his  wife,  habendum  to 
them,  to  the  use  of  them  and  the  heirs  of  their  two  bodies ; 
and  a  question  was  raised  whether  the  use  limited  did  not 
exceed  the  legal  estate  which  was  to  support  it  in  A  and  B. 
It  was  held  to  be  in  effect  a  limitation  of  the  estate  to  A  and 
B,  and  the  heirs  of  their  two  bodies,  at  common  law.  And 
one  reason  for  this  was,  that,  in  order  to  have  a  use  so  limited 
as  to  take  effect  under  the  statute,  it  must  be  to  some  other 
person  than  the  one  who  is  seised.  In  other  words,  if  the 
one  who  is  seised  is  to  have  the  use,  he  simply  takes  the 
estate  at  common  law.^     The  exception,  if  it  be  such,  to  this 

bertson  v.  Richards,  5   Hurkt.  &  N.  454 ;   Franciscus  v.  Reigart,  4  Watts,  98, 
118. 

1  1  Cruise,  Dig.  350 ;  Bac.  Law  Tracts,  335. 

2  Tud.  Lead.  Cas.  257  ;  Warner  v.  Sprigg,  62  Md.  14. 
8  1  Cruise,  Dig.  351. 

*  Jenkins  v.  Young,  Cro.  Car.  230  ;  Bac.  Law  Tracts,  339  ;  Sand.  Uses,  109  ; 
ante,  §  149  ;   Crabb,  Real  Prop.  §  1646  ;  1  Cruise,  Dig.  353  ;  Tud.  Lead.  Cas.  259. 

5  1  Cruise,  Dig.  352. 

6  Bac.  Law  Tracts,  352  ;  2  Prest.  Conv.  481. 

7  Jenkins  v.  Young,  Cro.  Car.  231  ;  Co.  Lit.  271  h,  Butler's  note,  231  ;  1  Cruise, 
Dig.  353  ;  Tud.  Lead.  Cas.  257  ;  2  Booth,  Cas.  in  Eq.  294  ;  Samines'  case,  13  Rep. 
56  ;  Jackson  d.  White  v.  Cary,  16  Johns.  302  ;  2  Prest.  Conv.  481. 

VOL.   II.  —  25 


386  USES  AFTER  THE  STATUTE  OF  USES. 

rule,  is,  that  if  the  feoffment  be  to  A  and  his  heirs,  to  the 
use  of  him  and  the  heirs  of  his  body,  it  is  held  to  take  effect 
under  the  statute,  and  to  be  executed  in  A  for  the  benefit  of 
his  issue  in  tail.^ 

§  1856.  Cestui  que  Use  in  esse  essential.  —  In  order  to  have 
an  estate  take  effect  under  the  statute,  there  must  be  a  cestui  que 
use  in  esse.  And  if  an  estate  is  limited  to  the  use  of  some  one 
not  in  esse,  or  capable  of  being  ascertained,  the  statute  cannot 
have  any  operation  until  the  cestui  que  use  comes  into  being, 
or  is  ascertained,  and  in  the  meantime  the  use  will  remain  in 
the  original  grantor,  waiting  to  be  executed  by  the  statute 
whenever  there  shall  be  a  cestui  que  use  to  take  it.^  And  upon 
the  same  principle,  where  a  use  has  been  limited  by  deed  and 
it  expires,  or  cannot  vest  in  the  cestui  que  use  named,  it  results 
back  to  the  one  who  declared  it.'^ 

§  1357.  Who  may  be  Cestui  que  Use.  —  In  respect  to  those 
who  may  be  cestuis  que  use,  there  seems  to  be  no  limitation  ; 
even  corporations  not  being  excluded."* 

§  1358.  How  Limitations  made  to  Cestuis  que  Use.  —  In  limit- 
ing estates  to  cestuis  que  use,  the  same  terms  are  requisite 
under  the  statute  to  create  a  fee  or  a  freehold,  or  the  like,  as 
were  necessary  in  a  conveyance  at  common  law ;  consequently 
no  fee-simple  in  uses  can  be  created  by  deed  without  the  word 
"  heirs."  ^  And  where  an  estate  was  limited  to  the  use  of  J.  S. 
and  his  heirs  male,  it  was  held  to  be  an  estate  in  fee-simple, 
because  at  common  law,  as  heretofore  shown,  such  a  limitation 
would  create  a  fee-simple,  there  being  no  words  of  procreation 
indicating  the  body  from  which  the  heirs  were  to  proceed.^  But 
a  use  may  be  limited  in  fee-simple  or  fee-tail,  for  life  or  years, 

1  1  Cruise,  Dig.  357  ;  Samines'  case,  13  Rep.  56. 

2  Chudleigli's  case,  1  Rep.  126  ;  1  Cruise,  Dig.  354  ;  2  Bl.  Cora.  336  ;  Bac.  Law 
Tracts,  350 ;  Hayes,  Real  Est.  64  ;  Reformed  Prot.  Dutch  Ch.  v.  Veeder,  4  Wend. 
494  ;  Sliapleigh  v.  Pilsbury,  1  Me.  271  ;  Sewall  v.  Cargill,  15  Me.  414 ;  Ashhurst 
V.  Given,  5  Watts  &  S.  323;  Miller  v.  Chittenden,  2  Iowa,  371  ;  post,  §  1476. 

*  Jackson  d.  Lu,dlow  v.  Myers,  3  Johns.  388. 

*  1  Cruise,  Dig.  354  ;  Bac.  Law  Tracts,  350.     And  see  post,  §  1487  et  seq. 

6  Tud.  Lead.  Cas.  261  ;  Sand.  Uses,  122  ;  Gilb.  Uses,  Sugd.  ed.  143;  Tapner  v. 
Merlott,  Willes,  180.  This  rule,  of  course,  is  changed  by  the  statutes  regarding 
the  necessity  of  the  word  "heirs"  to  create  a  fee  in  conveyances.  See  ante, 
§  86. 

6  Abraham  v.  Twigg,  Cro.  Eliz.  478;  Gilb.  Uses,  Sugd.  ed.  143  ;  ante,  §  163. 


USES   AFTER   THE   STATUTE   OF    USES.  387 

or  in  remainder,  or  rcversion.i  And  a  limitation  by  deed  to 
the  use  of  J.  S.  and  the  issue  male  of  his  body  is  neither  an 
estate  tail  nor  a  fee-simple  for  the  want  of  the  word  "  heirs." 
It  is  a  mere  life  estate. ^ 

§  1359.  Terms  by  which  Uses  are  created.  —  As  to  the  words 
necessary  in  a  conveyance  to  declare  or  create  a  use  in  an- 
other in  respect  to  that  which  is  conveyed  to  the  feoflfee,  the 
words  of  the  statute  are  "  use^  confidence^  or  trust.'^  But 
it  would  be  sufficient  if  the  words  used  clearly  indicated  an 
intention  to  create  a  use,  althouj^h  not  those  found  in  the 
statute.  ^ 

§  1360.  Where  Feoffee  may  take  as  Cestui  que  Use. — There 
are  many  cases  where  one  may  take  as  cestui  que  use,  although 
lie  is  named  also  as  feoffee  notwithstanding  the  strong  terms 
in  which  the  law  holds  an  estate  limited  to  one  to  his  own  use 
and  that  of  his  heirs  to  be  an  estate  at  common  law.  Such 
would  be  the  case  if  the  seisin  and  use  did  not  vest  equally  and 
alike  in  the  same  person.  The  limitation  might  be  good  under 
the  statute  in  passing  the  estate  by  executing  it  in  the  cestui 
que  use,  provided  such  was  the  intention  of  the  parties.  Thus 
where  several  persons  are  seised  to  the  use  of  one  of  them,  the 
estate  is  executed  according  to  the  use.  So  if  the  estate  be 
limited  to  A  B  and  his  heirs,  to  the  use  of  him  and  the  heirs 
of  his  body,  it  will  be  executed  in  the  use  as  an  estate  tail.  So 
an  estate  to  A  to  the  use  of  A  and  C  and  their  heirs,  it  was 
held  that  they  were  joint-tenants,  and  that  A  did  not  take  a 
half  as  tenant  in  common  by  the  common  law,  but  the  whole 
estate  was  executed  in  the  use  according  to  its  intent,  being  an 
estate  in  joint-tenancy.^  So,  "  if  J.  enfeoff  J.  S.  to  the  use  of 
J.  D.  for  life,  then  to  the  use  of  himself  for  life,  with  remain- 
der to  the  use  of  J-  N.  in  fee,  the  law  will  not  admit  fractions 
of  estates,  but  J.  S.  is  in  with  the  rest  by  statute."  "So  if 
J.  enfeoff  J.  S.  to  the  use  of  himself  and  a  stranger,  they  shall 
both  be  in  by  the  statute,  because  they  could  not  take  jointly, 
taking  by  several  titles."  ° 

1  1  Cruise,  Dig.  354.     See  Stat.  27  Hen.  VIH.  c.  10,  §  1. 

2  Nevell  V.  Nevell,  1  RoUe,  Abr.  837,  R.  1 ;  Sand.  Uses,  123. 
8  Tud.  Lead.  Cas.  258  ;  Boydell  v.  Walthall,  F.  Moore,  722. 
*  Sarames'  case,  13  Kep.  55  ;  1  Cruise,  Dig.  357. 

6  Bac.  Law  Tracts,  353 ;  Tud.  Lead.  Cas.  258  ;  Sand.  Uses,  94-96. 


388  USES    AFTER   THE   STATUTE   OF   USES, 

§  1361.    Conveyances,    impossible    at    Common    Law,  became 
possible    under    Statute.  —  Among  the  instances   and   illustra- 
tions of  accomplishing  the  conveyance  of  an  estate  by  the  use 
being  executed  in  the  cestui  que  use,  which  could  not  be  done 
directly  at  common  law,  is  that  of  a  conveyance  by  a  husband 
to  his  wife.    At  common  law,  such  a  deed  would  be  void.     But 
by  a  feoffment  or  covenant  to  stand  seised  made  by  a  husband 
to  a  third  person,  to  the  use  of  his  wife,  the  estate  would  be  exe- 
cuted in  the  use,  and  made  effectual  by  the  statute.^     So  where 
A  conveyed  to  B,  to  the  use  of  A  and  his  wife  for  life,  remain- 
der to  the  use  of  C  and  D  and  their  heirs,  it  created  an  executed 
estate  to  A  and  his  wife  jointly  for  life,  and  a  vested  remainder 
in  fee  to  C  and  D.^     So  one  having  a  mere  seisin  of  lands  in 
fee  may  convey  them  to  B,  to  the  use  of  himself  for  life,  or  to 
the  use  of  himself  and  B  for  life,  with  remainder  to  A  in  tail, 
and  the  conveyance  be  good  under  the  statute.^     So  if  lands  be 
conveyed  to  A  and  his  heirs,  to  the  use  of  B  and  his  heirs,  the 
entire  estate  is  executed  in  B  by  the  statute  ;  and  if,  instead  of 
its  being  to  the  use  of  B  and  his  heirs,  it  had  been  to  the  use 
that  B  should  receive  the  rents  and  profits  during  life,B  would, 
in  such  case,  be  seised  of  an  executed  estate  for  life,  according 
to  the  use  as  declared.'* 

§  1362.  Contingent  Remainders  by  Way  of  Uses.  —  As  at  com- 
mon law  there  must  be,  with  very  few  exceptions,  some  one  in 
whom  the  seisin  of  an  estate  rests,  if  an  estate  is  limited  in 
remainder  to  a  person  not  yet  in  esse,  as  to  the  oldest  son  of 
A  B,  who  has  none,  or  the  heirs  of  C  D,  who  is  living,  and 
whose  heirs  cannot  therefore  be  ascertained,  it  is  a  contingent 
one,  and  requires  that  there  should  be  some  one  to  whom  a 
freehold  estate  should  be  limited  at  the  same  time  that  the 
remainder  is  created,  as  to  A  B  for  life,  remainder  to  the  heirs 
of  C  D,  who  is  then  living.  And  if  there  be  no  prior  estate  to 
sustain  such  remainder,  or  it  is  one  for  years  only,  which 
would   not  sustain  the  remainder,  it   would  accordingly  fail 

1  Thatcher  v.  Omans,  3  Pick.  521  ;  Martin  v.  Martin,  1  Me.  394  ;  1  Cruise, 
Dig.  354  ;  Tud.  Lead.  Cas.  262;  Co.  Lit.  112  a;  Bedell's  case,  7  Rep.  40.  Cf. 
Kellogg  V.  Hale,  108  111.  164. 

2  Johnson  i'.  Johnson,  7  Allen,  197. 

3  Tud.  Lead.  Cas.  261. 

*  Tud.  Lead.  Cas.  358  ;  Right  d.  Phillips  v.  Smith,  12  East,  455. 


USES   AFTER   THE   STATUTE   OP   USES.  389 

altogether.  The  same  rule  applies  to  contingent  remainders 
limited  by  way  of  use.  Thus,  if  a  grant  of  a  wife's  estate  was 
made  by  the  husband  and  wife  to  the  use  of  the  heirs  of  the 
body  of  the  husband  on  the  wife  begotten,  remainder  to  the 
use  of  the  right  heirs  of  the  husband,  there  would  be  no  diffi- 
culty in  such  a  case  in  finding  a  life  estate  to  sustain  the  re- 
mainder so  long  as  the  wife  lived,  for  the  use  resulted  to  her, 
as  she  had  never  parted  with  it.  But,  she  dying  before  her 
husband,  the  limitation  to  the  right  heirs  of  the  husband 
became  void  ;  for  the  remainder  was  contingent  while  he  lived, 
and  there  was  no  estate  to  sustain  it  after  her  death. ^  So 
where  a  grant  was  made  to  the  use  of  the  grantor  foi-  seventy 
years,  if  he  so  long  lived,  remainder  to  the  heirs  male  of  his 
body,  it  was  held,  that,  as  a  limitation  of  a  contingent  remain- 
der in  favor  of  the  heirs  of  his  body,  it  was  void,  because  the 
prior  estate  in  the  use  in  himself  was  one  for  years.^  Though 
there  are  cases  where,  if  the  use  of  the  prior  estate  be  limited 
to  a  third  party  and  not  to  the  grantee,  and  is  for  years,  and 
there  be  a  use  by  way  of  contingent  remainder,  dependent 
upon  the  death  of  the  grantor,  the  remainder  will  be  sustained 
by  an  implied  or  resulting  use  to  the  grantor  for  life,  after  the 
use  for  years  which  has  been  thus  expressly  limited.^  The 
difference  between  the  two  cases  being,  that  in  the  first  the 
law  would  not  imply  a  use  for  life  when  the  expi-ess  limitation 
was  seventy  years  ;  and  in  the  second,  as  only  a  limited  num- 
ber of  years  was  granted  to  another,  all  that  remained  between 
the  end  of  that  term  and  the  taking  effect  of  the  remainder 
over  at  his  death  resulted  to  him  who  created  it,  whereby  a 
succession  of  vested  estates,  taken  together,  supplied  collec- 
tively a  complete  estate  between  the  taking  effect  of  the  grant 
and  the  final  vesting  of  the  contingent  remainder. 

§  1363,  A  Use  in  esse  necessary. — The  third  requisite  to 
bring  a  case  within  the  statute  is,  that  there  be  a  use  in  esse, 

1  Davies  v.  Sjieed,  2  Salk.  675  ;  Fearne,  Cont.  Rem.  284,  n. 

2  Rawley  v.  Holland,  2  Eq.  Cas.  Abr.  753  ;  Adams  v.  Savage,  2  Salk.  679  ;  Tiul. 
Lead.  Cas.  261  ;  1  Pre.st.  Est.  195  ;  Fearne,  Cont.  Rem.  284  ;  1  Spence,  Eq.  Jiir.  504. 

3  Beverley  v.  Beverley,  2  Vern.  131  ;  1  Prest.  Est.  197.  Limitations  like  those 
above  mentioned,  which  are  future  and  contingent,  may,  undpr  some  cii-cunistajices, 
be  good  by  the  way  of  springing  uses  or  executory  devises.  Sand.  Uses,  142,  143  ; 
Hayes,  Real  Est.  67. 


390  USES  AFTER  THE  STATUTE  OF  USES. 

either  in  possession,  reversion,  or  remainder,  though  it  is 
immaterial  whether  this  use  is  created  by  express  declaration, 
or  results  or  arises  by  implication  of  law.^ 

§  1364.  When  and  how  Uses  are  executed.  —  If,  therefore, 
these  three  things  concur,  namely,  a  person  seised  to  a  use,  a 
cestui  que  use,  and  a  use  in  esse,  the  use  is  said  to  be  executed. 
And  if  the  use  declared  be  not  in  esse  at  the  time,  it  cannot  be 
executed  until  it  comes  in  esse.  The  consequence  would  be, 
that  if,  in  the  mean  time,  the  feoffee  is  disseised,  or  parts  with 
his  seisin  to  a  stranger  without  notice  of  the  use,  and  for  a 
valuable  consideration,  the  seisin  will  be  wanting  if  the  use 
comes  in  esse,  and  it  therefore  can  never  be  executed  in  the 
cestui  que  use.^  And  growing  out  of  this  capacity  in  a  use  of 
being  executed  when  it  comes  in  esse,  thougli  subsequent  to  its 
being  declared,  a  principle  is  applied  in  respect  to  creating  a 
joint-tenancy  in  a  use,  which  is  different  from  that  of  the  com- 
mon law.  An  estate  may  be  limited  to  several  as  joint-tenants 
by  the  way  of  use,  and  may  be  executed  in  them  in  succession, 
one  after  the  other,  instead  of  taking  effect  at  one  and  the 
same  time,  as  is  required  by  the  common  law.  Thus,  in  a 
limitation  to  the  use  of  A  and  any  wife  he  should  marry,  the 
use  would  be  executed  in  A  alone  until  he  married,  when  it 
would  also  be  executed  in  his  wife  as  joint-tenant  with  him.^ 

§  1365.  Seisin  transferred  by  executing  a  Use.  —  The  effect 
of  a  use  being  executed  in  the  cestui  que  use,  as  above  ex- 
plained, is,  that  the  statute  comes  in  and  actually  transfers  the 
seisin  and  possession  from  the  feoffee  to  use  to  the  cestui  que 
use,  to  all  intents  and  purposes,  without  any  actual  entry  being 
necessary  to  give  him  the  seisin.  It  is  not  merely  a  title,  but 
an  actual  estate,  wliich  is  thus  created  in  the  cestui  que  use, 
as  effectually  as  if  it  had  been  done  by  a  conveyance  with 
livery  of  seisin  at  common  law.* 

§  1366.  statute  guards  against  Merger  as  to  Feoffee.  —  The 
statute,  it  will  be  perceived,  recognizes  both  the  common  law 

1  Chudleigh's  case,  1  Rep.  126  ;  1  Cruise,  Dig.  358. 

2  Chudleigh's  case,  1  Rep.  126. 

8  Tud.  Lead.  Cas.  262  ;  Bac.  Law  Tracts,  351. 

*  Bac.  Law  Tracts,  338  ;  1  Sand.  U.ses,  119  ;  Aiion.,  Cro.  Eliz.  46  ;  1  Crui.se, 
Dig.  358  ;  Tud.  Lead.  Cas.  260  ;  Co.  Lit.  266  b  ;  Barker  v.  Keat,  2  Mod.  249  ; 
Witham  v.  Brooner,  63  111.  344. 


USES   AFTER   THE   STATUTE   OP   USES.  391 

and  the  existing  law  of  uses,  and  is  careful  to  guard  against 
their  conflicting  with  each  other,  wherever  it  did  not  intend  to 
restore  the  common  law  by  extinguishing  uses.  Thus,  at  com- 
mon law,  if  one  having  a  lesser  estate,  a  term  for  years,  for 
example,  were  to  become  vested  with  a  greater  one,  as  a  fee, 
for  instance,  his  lesser  would  merge  in  his  greater  estate. 
And  if  in  a  case  like  this,  one  who  had  a  term  for  years  had 
been  made  feoffee  in  fee  to  the  use  of  another,  the  effect  might 
have  been  first  to  merge  his  own  estate  into  that  held  by  him  as 
feoffee,  and  next  to  transfer  that,  by  force  of  the  statute,  to 
the  cestui  que  use,  and  thus  destroy  his  own  estate  altogether. 
The  third  section  of  the  statute  guards  against  such  a  conse- 
quence by  declaring  that  it  shall  not  have  that  effect.^  And,  as 
has  already  been  stated,  the  courts,  in  construing  the  statute, 
required  the  rules  of  the  common  law  to  be  observed  in  regard 
to  the  words  requisite  to  create  estates  of  inheritance  in  con- 
veyances to  uses.2 

§  1367.  Union  of  Common  Law  with  Uses  by  the  Statute.  —  But 
this  recognition  by  the  statute  of  both  the  common  law  and  the 
law  of  uses  left  so  much  room  for  construction,  that  it  led  prac- 
tically to  the  ingrafting  of  the  one  upon  the  other  in  the  apj)lica- 
tion  of  the  statute  by  the  courts.  Thus  many  of  the  rules  of  the 
common  law  were  made  to  give  place  to  sundry  modifications 
of  the  laws  of  real  property,  which  had  been  adopted  by  chan- 
cery befoi'e  the  statute,  in  dealing  with  uses  as  distinct  from 
the  legal  estate.  To  justify  them  in  so  doing,  they  seized 
upon  that  expression  which  has  before  been  referred  to  in  the 
statute,  uniting  the  estate  of  the  feoffee  to  use  with  the  use, 
in  the  cestui  que  use,  "  after  such  quality,  manner,  form,  and 
condition  as  he  had  before  in  or  to  the  use,  confidence,  or  trust 
that  was  in  him."  "  The  effect  is,"  says  Bacon,  "  that  cestui  que 
use  shall  be  in  possession  of  like  estate  as  he  hath  in  the  use ; 
the  fiction,  quo  modo,  is,  that  the  statute  will  have  the  posses- 
sion of  cestui  que  use  as  a  new  body  compounded  of  the  matter 
and  the  form,  and  that  the  feoffee  shall  give  matter  and  sub- 
stance, and  the  use  shall  give  form  and  quality."  "  But  the 
statute  meant  such  quality,  manner,  form,  and  condition  as  is 

1  Statute  27  Hen.  VIII.  c.  10,  §  3  ;  1  Cruise,  Dig.  358. 

2  Sand.  Uses,  122  ;  Tud.  Lead.  Cas.  261. 


392  USES    AFTER    THE    STATUTE    OF    USES. 

not  repugnant  to  the  corporeal  presence  and  possession  of  the 
estate."  ^ 

8  1368.  Of  Uses  to  commence  in  Futuro.  —  At  common  law  a 
freehold  could  not  be  limited  to  commence  in  futuro,  without 
some  intermediate  estate  to  sustain  it  as  a  remainder.  But, 
before  the  statute,  a  use  might  be  limited  to  spring  up  at  a 
future  period,  without  any  such  previous  estate.  So  if,  at 
common  law,  a  man  seised  of  a  fee  parted  with  it  by  feoffment, 
he  could  exercise  no  further  control  over  it,  unless  it  might  be 
to  regain  it  to  himself  upon  tlie  breach  of  some  condition. 
But,  before  the  statute,  chancery  allowed  one  to  create  a  use 
in  favor  of  some  one  in  fee,  and,  at  the  same  time,  reserve  the 
power  of  divesting  the  first  grantee  of  the  use,  and  of  passing 
it  over  to  another  in  fee.  Accordingly,  Lord  Hardvvicke,  re- 
ferring to  springing  uses  and  powers  such  as  are  above  de- 
scribed, as  well  as  to  contingent  uses  and  executory  devises, 
which  will  be  more  fully  explained  hereafter,  declares  that 
these  were  all  foreign  to  the  notions  of  the  common  law,  and 
could  not  be  limited  upon  common  law  fees,  but  were  let  in  by 
construction,  by  the  judges  themselves,  upon  uses,  after  these 
had  become  legal  estates.^ 

§  1369.  Freeholds  in  Futuro  raised  by  Uses.  —  Agreeably  to 
this  statement,  the  judges  sustained  limitations,  by  way  of  use, 
of  freeholds  to  commence  in  futuro  without  any  particular 
estate  to  sustain  them,  and  allowed  a  use  to  shift  from  one 
person  to  another,  by  some  matter,  ex  post  facto,  although 
limited  at  first  in  fee,  because  the  same  thing  had  been  done 
with  uses  by  chancery  before  the  statute.^  And  in  pursuance 
of  this  doctrine  it  was  held,  that  a  covenant  to  stand- seised 
(and  the  word  grant  is  in  some  cases  sufficient  for  this)  to  a 
future  use  would  be  good,  without  any  provision  as  to  the 
estate  in  the  meantime,  since  the  use  would,  in  such  case,  be 
held  to  result  to  the  covenantor,  and,  in  a  way  hereafter  to  be 
explained,  his  seisin  serves  the  uses,  that  is,  is  united  with  the 
uses  as  they  arise,  whereby  they  become  executed  estates.^     So 

1  1  Cruise,  Dig.  363  ;  Castle  v.  Dod,  Cro.  Jac.  201  ;  27  Hen.  VIII.  c.  10,  §  1  ; 
Bac.  Law  Tracts,  337,  340. 

2  Hopkins  v.  Hopkins,  1  Atk.  591. 

3  1  Cruise,  Dig.  363  ;  Tud.  Lead.  Cas.  262. 

4  Roe  d.  Wilkinson  v.  Tranmair,  Willes,  682  ;  s.  c.  2  Wils.  77 ;  Tud.   Lead 


USES   AFTER   THE    STATUTE    OF    USES.  393 

if  A  enfeoff  B  to  the  use  of  C,  after  the  death  of  A,  it  will  be 
a  good  use  in  C,  though  infuturo,  the  use  until  the  death  of  A 
resulting  to  hiin.^ 

§  1370.  As  to  Freeholds  in  Puturoby  Bargain  and  Sale.  —  It  18 
laid  down  in  unqualified  terms,  in  several  American  cases,  that 
an  estate  of  freehold  cannot  be  created  to  commence  in  futuro 
by  a  deed  of  bargain  and  sale.^  But  in  another  case,  where 
there  was  a  grant  to  a  religious  society  not  yet  in  esse,  it  was 
held  that  the  right  to  the  possession  and  custody  of  the  land 
remained  in  the  grantor  till  the  society  became  in  esse;  and 
although  the  language  of  the  court  does  not  designate  the  con- 
veyance as  a  bargain  and  sale,  or  covenant  to  stand  seised,  or 
Si  fjratit,  they  nevertheless  for  tha-purposes  of  giving  full  effect 
to  the  grant,  and  of  preserving  the  estate  granted  for  the  uses 
intended,  consider  the  fee  as  remaining  with  the  grantor.  This, 
of  course,  was  treating  the  grant  to  the  society  as  an  estate  in 
fee  which  was  to  take  effect  in  futuro.^  In  a  later  case,  it 
was  held  in  Illinois,  that  a  conveyance  by  bargain  and  sale  of 
an  estate  in  fee,  to  begin  after  the  death  of  the  grantor,  was  a 
valid  conveyance  of  the  fee,  and  that  there  was  a  resulting  use 
to  the  grantor  for  his  life.*  In  Jackson  v.  Dunsbagh,^  more- 
over, the  court  of  New  York  held  that  a  bargain  and  sale  of  a 
freehold  in  futuro  would  be  good,  because  the  use  in  the  mean- 
time resulted  to  the  bargainor.  "Here,"  say  the  court,  "is  a 
conveyance  to  the  bargainee  to  take  effect  at  the  decease  of  the 
bargainor."  The  court  cite  Bacon's  Law  Tracts,  352,  in  which 
it  is  said  :  "  If  I  bargain  and  sell  my  land  after  seven  years, 
the  inheritance  of  the  use  only  passeth,  and  there  remains  an 
estate  for  years  by  a  kind  of  subtraction  of  the  inheritance  or 
occupier  of  my  estate,  but  merely  at  the  common  law." 

Cas.  262;  Osnian  v.  Sheafe,  3  Lev.  370  ;  2  Smith,  Lead.  Cas.  288-297;  Hayes  v. 
Kershow,  1  Sandf.  Ch.  2.58,  267  ;  Sleigh  v.  Metham,  1  Lutw.  782  ;  Doe  d.  Mil- 
burn  V.  Salkeld,  Willes,  674. 

1  Tud.  Cas.  262  ;  Gilb.  Uses,  Stigd.  ed.  163. 

2  Pray  v.  Pierce,  7  Mass.  381  ;  Parker  r.  Nieliols,  7  Pick.  115;  Gale  v.  Coburn, 
18  Pick.  397;   Brewer  v.  Hardy,  22  Pick.  376  ;  Marden  v.  Chase,  32  Me.  329. 

8  Sha]ileigh  v.  Pilsbury,  1  Me.  271.  The  technical  <:;rounds  on  which  the  case 
was  decided  are  not  very  satisfactorily  stated.  It  is  obviously  a  case  of  a  spring- 
ing use.     See  post,  §  2279. 

*  Shackelton  v.  Sebree,  86  111.  620. 

5  .Tackson  d.  Trowbridge  v.  Dunsbagh,  1  Johns.  Cas.  96  ;  Gilb.  Uses,  Siigd.  ed. 
163  ;  Jackson  d.  Watson  v.  McKenny,  3  Wend.  235. 


394  USES    AFTER    THE    STATUTE    OF    USES. 

§  1371.  By  Bargain  and  Sale,  continued.  —  In  the  case  cited 
from  New  York,  the  conveyance  was  between  father  and  son, 
but  tliere  was  a  consideration  of  ten  shillings  acknowledged  in 
the  deed.  But  in  a  case  in  Massachusetts,  Judge  Jackson  uses 
this  language  :  "  The  principle,  then,  seems  to  be,  that  a  man 
may  convey  his  land  by  a  covenant  to  stand  seised  thereof  to 
the  use  of  another,  either  for  certain  good  considerations  or 
for  a  valuable  consideration  ;  but  in  the  latter  case  the  convey- 
ance, being  in  effect  a  bargain  and  sale,  must  have  all  the  other 
requisites  and  qualities  of  a  bargain  and  sale.  One  of  these 
qualities  is,  that  it  must  be  to  the  use  of  the  bargainee,  and 
that  another  use  cannot  be  limited  on  that  use ;  from  which  it 
follows,  that  a  freehold  to  commence  in  futuro  cannot  he  conveyed 
in  this  mode,  as  that  would  be  to  make  a  bargainee  hold  to  the 
use  of  another  until  the  freehold  should  vest."  ^  The  question 
would  seem  to  be,  therefore,  whether,  in  the  cases  where  it  has 
been  held  that  there  may  be  an  estate  of  freehold  in  futuro, 
created  by  bargain  and  sale,  it  is  not,  in  effect,  holding  that 
estates  may  be  created  by  covenant  to  stand  seised,  although 
the  consideration  is  a  pecuniary  one?^  In  addition  to  the 
foregoing  decided  cases,  the  language  of  eminent  writers  upon 
the  subject  may  be  cited.  Mr.  Sugden,  speaking  of  springing 
uses,  says  :  "  If  raised  by  a  covenant  to  stand  seised,  or  bar- 
gain and  sale,  the  estate  remains  in  the  covenantor  or  bargainor 
until  the  springing  use  arises.  Therefore  a  bargain  and  sale 
to  the  use  of  J.  D.,  after  the  death  of  J.  S.  without  issue,  can- 
not be  limited  on  a  bargain  and  sale  to  a  person  not  in  esse."  ^ 
Mr.  Cornish  says :  "  By  bargain  and  sale  or  covenant  to  stand 
seised,  a  freehold  maybe  created  in  futuro."  '^  Mr.  Sanders 
says :  "  Rolle,  indeed,  puts  the  case  of  covenant  to  stand 
seised  for  money  ;  but  such  covenant  would,  at  this  day,  operate 
as  a  bargain  and  sale."  ^ 

1  Welsh  V.  Foster,  12  Mass.  9.3,  96. 

2  Jackson  v.  McKenny,  3  Weiid.  235  ;  Jackson  d.  Wood  v.  Swart,  20  Johns. 
85;  Hayes  v.  Kershow,  1  Sandf.  Ch.  267,  268;  Jackson  d.  Staats  v.  Staats,  11 
Johns.  337;  Bell  v.  Scanimon,  15  N.  H.  381,  394;  U.  S.  Bank  v.  Housman, 
6  Paige,  526  ;  pnxf,  §§  2279,  2280. 

3  Gilb.  Uses,  by  Sugd.  163  ;  Tud.  Lead.  Cas.  262. 

*  Cornish,  Uses,  44,  89  ;  2  Smith,  Lead.  Cas.  (5th  ed.)  451. 
6  2  Sand.  Uses,  59. 


USES    AFTER    THE    STATUTE    OF    USES.  395 

§  1372.  Powers  reserved  by  Means  of  Uses. — For  reasons 
above  stated,  a  feoffor  was  allowed  to  reserve  to  himself  or 
some  other  person  a  power  of  revoking  a  limitation  of  uses 
which  he  should  make,  and  to  appoint  a  new  use  instead  there- 
of, to  some  other  person,  since,  as  the  law  stood  before  the 
statute,  the  feoffee  had  no  interest  in  the  land  other  than  to 
execute  the  directions  of  the  feoffor  as  to  who  should  have 
the  use  of  the  estate,  and  the  feoffor  might  change  these  uses 
at  his  will,  even  though  the  first  use  declared  was  in  fee.  Tliis 
could  not  have  been  done  at  common  law,  since,  after  a  man 
had  parted  with  his  seisin  and  fee,  he  could  have  no  further 
control  over  the  estate.^ 

§  1873.  Future  and  Contingent  Uses.  —  Different  terms  arc 
applied  to  describe  future  uses,  depending  upon  the  manner  in 
which  they  are  to  arise.  If  a  use  is  to  arise  by  the  happening 
of  some  contingent  event  which  is  provided  for  by  the  deed 
declaring  it,  which  event  may  be  called  the  act  of  God,  it  takes 
the  name  of  a  future,  a  contingent,  or  an  executory  use.  But 
when  it  arises  from  the  act  of  some  agent  or  person  named  in 
the  deed  creating  it,  it  is  called  a  use  arising  from  the  execu- 
tion of  a  power.  Both  are  in  effect,  however,  future  or  con- 
tingent uses  till  the  act  is  done.^  Whenever  the  use  comes  in 
esse,  by  whatsoever  means,  the  statute  vests  the  seisin  in  the 
cestui  que  use.^  The  estate  thus  acquired  by  the  cestui  que  use 
has  the  qualities  and  is  subject  to  all  the  legal  incidents  of  a 
legal  estate,  such  as  escheat,  dower,  curtesy,  and  the  like  ;  while 
that  of  the  feoffee  to  use,  being  instantly  taken  out  of  him  as 
soon  as  created,  is  not  subject  to  any  of  these  legal  incidents.* 

§  1374.  Some  Future  Uses  treated  as  Remainders.  —  But  if  a 
future  contingent  use  is  limited  as  a  remainder,  the  same  rule 
applies  as  to  its  being  necessary  that  it  should  vest  during  the 
particular  estate,  or  immediately  on  its  determination,  as  was 
applied  at  common  law  to  remainders  in  the  conveyance  of 
lands,  and  as  will  be  explained  hereafter.^ 

1  1  Cruise,  Dig.  364 ;  Co.  Lit.  237  a. 

2  Shep.  Touch.  Prest.  ed.  529,  n. ;  Weale  v.  Lower,  Pollexf.  65  ;  Gilb.  Uses, 
Sugd.  ed.  159. 

s  Shep.  Touch.  Prest.  ed.  529,  n. 

*  Tud.  Lead.  Cas.  261  ;  Sand.  Uses,  119. 

8  Chudleigh's  case,  1  Eep.  130,  135  ;  Tud.  Lead.  Cas.  261  ;  Gilb.  Uses.  Sugd.  ed. 


396  USES    AFTER    THE    STATUTE    OF    USES. 

§  1375.  Enrolment  of  Deeds  of  Bargain  and  Sale.  —  Although 
one  of  the  professed  objects  of  the  statute  was  to  restore  sim- 
plicity and  notoriety  in  the  transfer  of  estates,  it  might,  under 
tlie  construction  given  by  the  courts,  be  made  the  means  of 
complicating  conveyances  of  lands,  as  well  as  of  their  being 
secretly  made.  It  retained  uses,  thereby  doing  away  with  the 
formal  livery  of  seisin  as  a  means  of  notoriety  ;  and  so  obviously 
did  it  fail  to  restore  the  former  notoriety  of  the  common  law, 
by  allowing  the  contract  of  sale  to  be  complete  and  effectual 
by  a  mere  oral  agreement,  that  an  attempt  was  made,  the  very 
same  year  with  the  passage  of  the  act,  to  correct  this  evil  by  a 
second  act,  27  Hen.  YIII.  c.  16,  which  required  conveyances 
of  land  by  a  bargain  and  sale  to  be  in  writing,  indented  and 
sealed,  if  it  was  of  a  freehold  estate,  and  to  be  enrolled  in  one 
of  the  king's  courts  of  record  at  Westminster.  But  this  did 
not  extend  to  a  bargain  and  sale  of  lands  for  a  term  of  years.^ 

§  1376.  Modes  of  conveying  Lands  by  Means  of  Uses.  — But 
as,  prior  to  the  statute  of  frauds  in  the  time  of  Charles  the 
Second,  it  did  not  require  a  written  instrument  to  convey 
corporeal  hereditaments,  except  as  provided  in  the  matter  of 
deeds  of  bargain  and  sale,  the  ingenuity  of  conveyancers  was 
not  slow  in  devising  various  modes  of  conveying  lands,  which, 
while  conforming  to  the  letter  of  the  statute  of  frauds,  made 
the  transfer  of  these  a  secret  act  between  the  parties.  By  some 
of  these  modes  the  grantor  parted  with  the  possession  of  his 
land  by  force  and  effect  of  the  common  law  in  the  act  of  con- 
veying it ;  in  others  he  did  not.  The  former  were  said  to  be 
conveyances  by  the  transmutation  of  possession ;  the  latter, 
conveyances  without  such  transmutation.  In  the  former,  the 
grantor  transferred  the  seisin,  by  feoffment  at  common  law,  to 
an  intermediate  feoffee,  while  he  named  the  cestui  que  use  to 
whom  the  use  was  given,  and  the  statute  passed  the  seisin 
of  the  grantor  through  such  feoffee  to  the  cestui  que  use,  thus 
completing  a  title  in  him  by  the  union  of  the  seisin  and  the 
use ;  in  the  latter,  the  grantor  gave  or  raised  the  use  in  favor 
of  the  cestui  que  use,  without  parting  with  the  seisin  to  any 

165  ;  Adams  v.  Savage,  2  Salk.  680 ;  Fearne,  Cont.  Rem.  284.     See  post,  §  1618 
et  seq. 

1  Wms.Real  Prop.  150  ;  Bac.  Law  Tracts,  344  ;  1  Cruise,  Dig.  365  ;  Gilb.  Uses, 
Siigd.  ed.  502. 


USES   AFTER   THE   STATUTE   OP   USES.  397 

intermediate  person,  the  seisin  that  was  in  himself  serving 
the  use  being  taken  from  him  by  the  statute  and  united  with 
the  use  in  the  cestui  que  use.  The  ultimate  effect  was  tlic 
same  in  the  one  mode  as  in  the  other. ^  But  in  the  former,  if 
•the  grantor  wished  to  create  an  estate  in  fee  in  the  cestui  que 
use,  he  must  give  a  fee  to  the  feoffee  to  use.  A  hmitation  to 
A  to  the  use  of  B  and  his  heirs  would  create  only  a  life  estate 
in  B,  as  though  the  use  was  one  for  life,  unless  the  feoffee  and 
cestui  que  use  are  the  same  person. ^ 

§  1377.  Conveyances  by  Transmutation  of  Possession.  —  Of 
the  modes  of  conveyance  by  the  transmutation  of  the  possession 
above  referred  to,  one  was  by  feoffment  to  use,  as  where  A  en- 
feoffed B  to  the  use  of  C.  The  statute  directly  and  at  once 
took  the  seisin  from  B,  and  united  it  with  the  use  in  C,  thereby 
completing  the  title  in  him.^  Another  mode,  spoken  of  in  the 
statute,  was  by  fine  and  recovery,  described  in  a  former  part 
of  this  work;*  and  where  either  of  tliese  was  accompanied 
with  a  declaration  of  uses  in  a  proper  form,  it  constituted  a 
conveyance  to  uses.^  Fines  have  been  abolished  in  England 
and  are  of  no  practical  interest  in  this  country. 

§  1378.  Without  Transmutation  —  Bargain  and  Sale.  —  The 
modes  of  conveying  estates  without  the  transmutation  of  pos- 
session were  more  numerous  than  those  of  the  class  above 
mentioned.  One  of  tliese,  bargain  and  sale,  has  already  been 
mentioned,  as  well  as  the  fact  that  the  statute  required  the 
deed  thereof  to  be  enrolled,  if  the  estate  conveyed  was  a  free-, 
hold.  This  mode  of  conveyance  consisted  of  a  contract  or 
bargain  by  the  owner  of  land,  in  consideration  of  money  or 
its  equivalent  paid,  to  sell  the  land  to  the  bargainee ;  where- 
upon a  use  arose  in  favor  of  the  latter,  and  the  statute  at  once 
took   from  the  bargainor  the  seisin  which  was  in  him,  and 

^  Browne,  Stat.  Frauds,  4  ;  Wms.  Real  Prop.  151. 

2  3  Prest.  Abst.  123. 

8  Watk.  Conv.  (White's  erl.  1838)  240  ;  Tnd.  Lead.  Cas.  265  ;  Wms.  Real  Prop. 
150  ;  id.  165  ;  4  Kent,  Com.  294  ;  Thatcher  v.  Omans,  3  Pick.  521. 

*  Ante,  §§  185,  186. 

6  2  Prest.  Conv.  480  ;  1  Cruise,  Dig.  367;  Sand.  Uses.  219.  Fines  might  be 
levied  in  New  York,  by  way  of  quieting  titles,  iintil  1830,  when  the  same  were 
abolished  by  statute.  A  case  of  this  kind  is  found  in  McGregor  v.  Com.stock,  17 
N.  Y.  162,  where  the  form  of  proceeding  is  described.  But  this  does  not  seem  to 
answer  to  the  conveyance  of  lands  by  means  of  a  fine,  which  is  above  referred  to. 


398  USES    AFTER   THE   STATUTE   OP   USES. 

transferred  it  to  the  bargainee,  who  already  had  the  use,  and 
thereby  made  his  title  complete.^  And  although  by  the  statute 
of  enrolments  such  indenture  must  be  enrolled  in  order  to  have 
the  full  effect  of  a  conveyance,  such  a  bargain  and  sale  made 
in  requisite  form,  without  the  enrolment,  would  be  treated  by 
chancery  as  evidence  of  an  agreement  to  convey,  which  might 
be  enforced  against  the  bargainor. 

§  1379.  Covenant  to  stand  seised.  —  Another  of  these  modes 
was  by  what  was  called  a  covenant  to  stand  seised,  where 
the  person  seised  of  land,  being  induced  to  part  with  the 
estate  to  his  wife  or  some  person  to  whom  he  was  akin  by 
blood,  in  consideration  of  such  relationship,  covenanted  to 
stand  seised  of  the  same  to  the  use  of  such  person,  either  in 
present  or  in  future.  By  such  covenant  he  raised  the  use  at 
the  time  when,  by  its  terms,  the  covenant  was  to  take  effect ; 
and  as  soon  as  the  use  was  raised,  it  became  executed  by  the 
statute  out  of  the  seisin  of  the  covenantor,  by  taking  that  and 
executing  it  with  the  use  in  the  cestui  que  use?  The  covenant 
must  of  course  be  by  deed  in  order  to  constitute  it  a  covenant ; 
and  the  usual  term  employed  in  creating  it  is  "  covenant," 
though  any  other  words  may  be  adopted  which  are  tantamount, 
as  "  bargain  and  sell,"  if  applied  where  the  consideration  of  the 
deed  is  blood  or  marriage.^  And  although  it  may  be  usual  to 
make  the  covenant  with  the  one  who  is  to  have  the  benefit  of 
the  use,  this  does  not  seem  to  be  necessary  ;  as  in  Bedell's  case, 
for  instance,  the  owner  of  the  land,  together  with  his  wife, 
covenanted  with  his  second  and  third  sons  that  he  the  grantor 
and  his  heirs  would  stand  seised  of  the  tenements  to  the  use  of 
himself  for  life,  and  after  his  decease  to  the  use  of  his  wife, 
and  after  her  death  to  the  use  of  the  two  sons  in  moieties,  in 
tail.     And  it  was  held,  that  the  use  thereby  raised  to  the  wife 

1  Tud.  Lead.  Cas.  265  ;  Mestaer  v.  Gillespie,  11  Ves.  625,  by  Eldon,  Ch.  It  was 
held  in  Marj'land,  that  although  an  existing  incorporeal  hereditament,  like  a  right 
of  way,  could  be  conveyed  by  deed  of  bargain  and  sale,  it  could  not  be  created  by 
a  deed  in  that  form  ;  it  must  be  done  by  grant  or  lease.  Hays  v.  Richardson, 
1  Gill  &  J.  378  ;  Beaudely  y.  Brook,  Cro.  Jac.  189  ;  Shep.  Touch.  Preston's  ed. 
222,  note  ;  and  the  reason  given  is,  that  there  can  be  no  use  of  a  thing  not  in  esse, 
as  a  way,  common,  and  the  like,  newly  created. 

2  Watk.  Conv.  (White's  ed.  1838)  333,  337  :  Tud.  Lead.  Cas.  265. 

8  Watk.  Conv.  (White's  ed.  1838)  335,  336;  Sand.  Uses,  79  ;  Emery  v.  Chase, 
5  Me.  232. 


USES    AFTER   THE   STATUTE   OP   USES.  399 

was  a  good  one.-^     A  husband  cannot,  however,  covenant  with 
liis  wife.^ 

§  1380.  Of  the  Considerations  to  support  Conveyances.  —  The 
rule  in  England  seems  to  have  been  very  stringent  in  requiring 
a  bargain  and  sale  to  be  for  a  valuable  consideration,  and  a  con- 
veyance by  covenant  to  stand  seised  to  be  for  the  consideration 
of  marriage  or  consanguinity.  Nor  will  they  allow  a  convey- 
ance to  have  the  effect  of  a  bargain  and  sale  where  the  consid- 
eration is  not  a  valuable  one,  nor  of  a  covenant  to  stand  seised 
where  the  consideration  is  not  that  of  marriage  or  consanguin- 
ity. And  if  these  respective  considerations  were  wanting,  the 
bargain  and  sale,  or  covenant,  as  the  case  might  be,  would  be 
inoperative.^  Though  the  Touchstone,  treating  of  what  would 
form  a  good  consideration  which  would  be  sufficient  to  sustain  a 
covenant  to  stand  seised,  says  that  "  covenant  to  stand  seised  to 
the  use  of  himself,  his  wife,  or  intended  wife,  children,  brothers, 
sisters,  or  cousins,  or  their  wives  or  intended  wives,  these  are 
good  considerations,  and  the  uses  and  estates  thereupon  thus 
raised  and  made  are  good."  ^  But  a  more  liberal  rule  seems 
to  prevail  in  the  United  States  as  to  giving  effect  to  a  covenant 
to  stand  seised  where  the  consideration  stated  in  the  deed  is  a 
pecuniary  one.  And  courts  have  often  construed  deeds  as 
covenants  to  stand  seised,  which  were  insufficient  in  form  to 
operate  otherwise  as  a  conveyance  of  land,  where  the  intention 
of  the  parties  could  be  ascertained  from  the  deed.  But  this  will 
be  further  considered  hereafter.^ 

§  1381.  Covenant  must  not  be  executory.  —  If  the  covenant  or 
bargain  be  an  executory  one  to  convey  or  settle  lands  to  certain 

1  Bedell's  case,  7  Rep.  40  ;  Co.  Lit.  112  a  ;  Brewer  v.  Hardy,  22  Pick.  376  : 
Barrett  v.  French,  1  Conn.  354  ;  Hayes  v.  Kershow,  1  Sandf.  Ch.  258  ;  Leavitt 
V.  Leavitt,  47  N.  H.  329 ;  Cornish,  Uses,  43,  44. 

2  3  Wood,  Conv.  286  ;  2  Rolle,  Abr.  788  ;  Co.  Lit.  112  a. 

3  4  Kent,  Com.  493  ;  Den  d.  Siirings  v.  Hanks,  5  Ired.  30  ;  Sand.  Uses,  81 ;  Jack- 
son d.  Houseman  v.  Sebring,  16  Johns.  515;  1  Cruise,  Dig.  107;  Smith  r.  Risley, 
Cro.  Car.  529  ;  3  Wood,  Conv.  285. 

*  Shep.  Touch.  Hiliiard's  ed.  512. 

6  1  Greenl.  Cruise,  Dig.  107,  note  ;  Welsh  v.  Foster,  12  Mass.  93,  96.  And 
one  reason  why  the  American  courts  are  less  stringent  in  discriminating  between 
these  modes  of  conveyance  doubtless  is,  that  there  is  no  distinction  here  as  there 
is  in  England  as  to  recording  the  deeds,  no  enrolment  being  required  there  of  a 
covenant  to  stand  seised.  See  Rawle's  note  to  Wms.  Real  Prop.  153  ;  4  Kent, 
Com.  494  ;  Bowman  v.  Lobe,  14  Rich.  Eq.  271. 


400  USES    AFTER   THE    STATUTE   OP   USES. 

uses,  it  would  not  operate  as  a  conveyance.  To  have  that  effect, 
it  must  be  an  actual  present  bargain  and  sale,  or  covenant  to 
stand  seised.^ 

§  1382.  Lease  and  Release.  —  Another  mode  of  conveyance, 
without  actual  transmutation  of  possession  of  the  land,  derived 
its  force  and  validity  partly  from  the  statute  of  uses,  and  partly 
from  the  common  law,  and  was  known  as  lease  and  release. 
It  was  in  use  for  more  than  two  centuries,  and,  until  the  recent 
act  8  &  9  Yict.  106,  was  the  most  usual  form  of  conveying 
lands  in  England,  and  was  at  last  superseded  by  that  act  mak- 
ing a  simple  deed  of  grant  sufficient  to  convey  corporeal  as  well 
as'  incorporeal  hereditaments.^  There  seems  to  have  always 
prevailed  in  England  a  disposition  to  avoid  giving  notoriety  to 
the  conveyance  of  lands,  from  the  general  custom,  perhaps,  that 
prevails  there  of  making  them  the  subjects  of  family  settlement 
and  arrangement.  It  is  to  this  that  the  opposition  to  a  gen- 
eral registry  act  is  probably  to  be  ascribed.  It  was  to  this  dis- 
position that  the  form  of  conveyance  by  lease  and  release  owed 
its  origin.  Secret  conveyances  could  not  be  effected  by  bargain 
and  sale,  for  these,  if  the  estate  conveyed  was  a  freehold,  were 
req^uired  to  be  enrolled.  Nor  could  it  be  by  covenant  to  stand 
seised  where  the  consideration  was  a  valuable  one.  Lord  Norris, 
accordingly,  being  desirous  of  conveying  some  of  his  lands  in  a 
secret  manner,  employed  Sir  Francis  Moore,  a  serjeant  at  law, 
at  one  time  a  reader  at  the  Temple,  and  known  as  the  author 
of  "Moore's  Reports,"  and  who  lived  between  1558  and  1621, 
to  devise  some  plan  to  effect  this  purpose.  He  adopted  a  liint 
from  the  exception  made  in  the  statute  in  respect  to  enrolling 
bargains  and  sales,  where  the  estate  was  less  than  a  freehold. 
Acting  upon  this,  he  conveyed  the  estate  by  bargain  and  sale  in 
the  usual  form  to  the  bargainee  for  one  year,  which  took  effect 
by  force  of  the  statute  of  uses,  without  the  necessity  of  any  enrol- 
ment so  as  to  make  the  lease  good  without  any  entry  made  or 
formal  possession  delivered.  The  bargainor,  lessor,  or  grantor 
(for  he  acted  all  these  parts)  was  then  to  execute  and  deliver 
an  ordinary  deed  of  release  at  common  law,  to  the  bargainee  or 
lessee,  in  fee  ;  and  this  did  not  require  any  livery  of  seisin  to 

1  Tud.  Lead.  Gas.  260  ;  1  Sand.  Uses,  114  ;  Edwards  v.  Freeman,  2  P.  Wms. 
435 ;  Trevor  v.  Trevor,  1  P.  Wrns.  622  ;   Blitheman  v.  Blitheman,  Cro.  Eliz.  280. 

2  Wms.  Real  Prop.  153  ;  Gilb.  Uses,  Sugd.  ed.  224. 


USES   AFTER   THE   STATUTE   OP   USES.  401 

give  it  effect,  since  the  grantee  or  releasee  was  theoretically 
already  in  actual  possession  of  the  premises.  The  bargain  and 
sale  for  the  year  was  usually  by  deed,  though  by  the  statute  of 
frauds  it  was  only  required  to  be  in  writing.  And  this  deed 
was  usually  dated  the  day  before  the  deed  of  release,  and  ac- 
knowledged the  receipt  of  some  nominal  sum  of  money,  but 
was  executed  the  same  day  with  the  release.  This  form  was 
continued  up  to  1841,  when,  by  statute,  it  might  be  effectual  if 
made  by  a  single  decd.^ 

§  1383.  Lease  and  Release  in  the  United  States  has  been  used 
to  some  extent  as  a  mode  of  conveyance,  but  is  now  rarely,  if 
ever,  employed.^ 

§  1384.  Formalities  in  declaring  Uses.  —  Prior  to  the  statute 
of  frauds  uses  might  have  been  declared  by  parol.  But,  by  that 
statute,  all  declarations  or  creations  of  trusts  or  confidences  of 
any  lands,  tenements,  or  hereditaments,  except  such  as  arise  or 
result  by  implication  of  law,  are  required  to  be  manifested 
and  proved  by  some  writing  signed  by  the  party,  or  by  his  last 
will  and  testament.^  And  where  the  conveyance  is  by  trans- 
mutation of  possession,  it  is  not  necessary  that  this  declaration 
should  be  by  the  same  instrument  by  which  the  conveyance  is 
made.  It  will  be  sufficient  if  done  by  that  or  a  distinct  instru- 
ment. But  instruments  which  do  not  operate  by  transmutation 
of  possession,  such  as  bargain  and  sale,  covenant  to  stand 
seised,  and  the  execution  of  an  appointment  under  a  power,  are 
in  themselves  the  declaration  of  the  uses  to  which  the  seisin  is 

1  Wins.  Real  Prop.  151,  153;  2  Prest.  Conv.  219;  Tiid.  Lead,  Cas.  265;  Wal- 
lace, Reporters,  86. 

2  Wins.  Real  Prop.  153,  Rawle's  note;  Lewis  v.  Beall,  4  Harr.  &  M'H.  488. 
The  distinction  between  the  various  forms  of  deeds  has  been  largely  effaced  in  the 
United  States.  Li  many  States,  by  statute,  livery  of  seisin  is  abolished,  and  all 
deeds,  of  wluitevor  form,  take  etlect  in  the  same  manner  as  feofTinents  at  common 
law,  i.  e.  vesting  the  possession  and  legal  title  in  the  grantee.  Wyman  v.  Brown, 
60  Me.  139 ;  Abbott  v.  Holway,  72  Me.  298 ;  Witham  v.  Brooner,  63  111.  344  ; 
Shackelton  v.  Sebree,  86  III.  620;  Love  v.  Harbin,  87  N.  C.  249  ;  Mosely  v.  Mosely, 
ib.  69  ;  Ocheltree  v.  McClung,  7  W.  Va.  232.  Whenever  such  a  deed  contains 
proper  words  of  conveyance,  it  is  sufficient  to  convey  any  kind  of  an  interest  in 
land,  whether  to  begin  at  once  or  in  the  future,  and  this  conveyance  is  effected 
without  the  intervention  of  the  statute  of  uses.  Abbott  v.  Holway,  supra.  Where 
the  instrument  does  not  contain  words  of  conveyance,  but  can  be  construed  only 
as  an  agreement  for  a  future  conveyance,  then  the  effect  of  the  statute  of  uses  is 
perceived.     Eysaman  v.  Eysainan,  24  Hun,  430. 

8  And  see  post,  §  1461. 
VOL.  II.  —  26 


402  USES   AFTER   THE   STATUTE   OF   USES. 

executed  by  the  statute.^  There  are  no  formal  words  required 
to  be  employed  in  declaring  a  use.  It  is  only  necessary  that  the 
declaration  should  be  certain,  and  especially  as  to  the  persons  in 
whose  favor  it  is  intended  to  be  made,  the  estates  they  are  to 
take,  and  the  lands  in  regard  to  which  the  declaration  is  made.^ 

§  1385.  Of  Uses  resulting  by  Implication.  —  The  doctrine  of 
uses  resulting  to  the  grantor  of  an  estate  by  implication,  before 
the  statute,  as  heretofore  mentioned,  is  in  force  in  certain  cases, 
by  the  construction  which  has  been  given  to  the  statute.  But 
it  only  applies  where  there  is  no  consideration  to  raise  the  use 
in  favor  of  any  other  person.  Consequently  a  use  can  result 
only  upon  a  grant  of  a  fee-simple  estate  ;  for  the  duties  which 
attach  to  the  estate  of  a  tenant  in  tail,  for  life,  or  for  years, 
constitute,  in  the  eye  of  the  law,  a  consideration  for  the  convey- 
ance so  far  as  to  negative  the  idea  of  a  use  resulting  to  him  who 
made  it,  for  the  want  of  a  consideration,  even  though  none  was 
actually  paid.^ 

§  138G.  Examples  of  Resulting  Uses.  — Among  the  cases  where 
the  law  would  raise  a  resulting  use  is  that  of  one  conveying  his 
land  in  fee  in  a  common-law  form  without  declaring  the  use, 
and  where  no  consideration  is  acknowledged.  The  use  in  such 
case  would  be  executed  in  the  grantor  himself.^  So,  if,  in  the 
case  above  supposed,  the  use  as  to  a  part  only  of  the  estate  is 
declared,  it  would  result  as  to  the  residue  to  the  grantor  ;  as 
where  a  conveyance  is  made  by  a  man  to  the  use  of  his  heirs, 
and  no  use  is  declared  of  the  same  during  his  life,  an  estate  for 
life  arises  in  his  own  favor  by  implication.  So  if,  besides  the 
use  to  his  heirs,  he  had  declared  an  immediate  use  to  one  for 
years,  so  much  of  the  use  as  would  be  left  between  the  expira- 
tion of  the  term  for  years  and  the  grantor's  death,  when  the 
use  to  his  heirs  would  be  executed,  would  result  to  him  ;  and 
thus  would  be  created,  in  effect,  a  present  use  for  years,  a  use 

1  Stat.  29  Car.  II.  c.  3,  §§  7,  8  ;  Sand.  Uses,  229  ;  Shep.  Touch.  519  ;  Tud. 
Lead.  Gas.  266. 

2  Tud.  Lead.  Gas.  267;  Shep.  Touch.  520  ;  Sand.  Uses,  229. 

8  Castle  V.  Dod,  Cro.  Jac.  200  ;  Perkins,  §§  533-535  ;  1  Spence,  Eq.  Jur.  452  ; 
2  Kolle,  Abr.  781,  F.  ;  1  Cruise,  Dig.  376  ;  Tud.  Lead.  Gas.  258 ;  1  Prest.  Est.  192. 

*  Armstrong  v.  Wolsey,  2  Wils.  19  ;  Beckwith's  case,  2  Rep.  58  ;  Sand.  Uses, 
100.  A  deed  of  bargain  and  sale  in  which  the  consideration  is  left  blank  would  be 
inoperative.  Moore  v.  Bickham,  4  Binn.  1.  As  to  the  effect  of  acknowledging 
consideration,  nee  post,  §§  1419,  1426. 


USES   AFTER   THE   STATUTE    OP   USES.  403 

in  remainder  for  life  to  the  grantor,  and  a  nse  to  his  heirs  in 
remainder  after  his  decease.  So  if  the  limitation  be  by  A,  for 
a  valuable  consideration,  to  B  in  fee,  to  the  use  of  B  for  life, 
without  any  other  declaration,  the  use  in  fee  after  B's  death 
would  result  to  the  grantor.^  In  the  language  of  the  court  of 
New  York,  "  As  a  general  rule  it  is  true,  that  where  the  owner, 
for  a  pecuniary  consideration,  conveys  lands  to  uses,  expressly 
declaring  a  part  of  the  use,  but  making  no  disposition  of  the 
residue,  so  much  of  the  use  as  the  owner  does  not  dispose  of, 
remains  in  him.  For  example,  if  an  estate  be  conveyed  for  a 
valuable  consideration  to  feoffees  and  their  heirs,  to  the  use  of 
them  for  their  lives,  the  remainder  of  the  use  will  result  to  the 
grantor."  ^  So  if  a  feoffment  were  made  to  the  use  of  A  B  for 
life,  with  a  remainder  to  the  use  of  the  right  heirs  of  C  D,  the 
reversion  of  the  use  remains  in  the  feoffor  until  the  heirs 
of  C  D  shall  have  been  ascertained.^  And  if  a  feoffment  be 
to  the  use  of  such  person  as  the  feoffor  shall  appoint  by  his 
will,  or  to  the  use  of  himself  and  wife  after  their  marriage,  the 
use  results  to  the  feoffor  until  the  appointment  is  made  in  the 
one  case,  or  the  marriage  is  had  in  the  other.^  So  where  a  hus- 
band and  wife  conveyed  the  estate  of  the  wife  by  fine  without 
any  declaration  of  uses,  or  a  man  conveyed  to  trustees  to  uses 
which,  by  their  terms,  were  not  to  be  executed  till  after  his 
death,  it  was  held,  in  the  one  case,  that  the  use  resulted  to  the 
wife,  and  in  the  other  to  the  grantor  during  his  life.^  But  if 
there  be  a  limitation  of  uses  to  one  and  his  heirs  during  the  life 
of  the  grantor,  and  then  a  limitation  to  the  use  of  the  heirs  of 
the  grantor's  body,  there  would  be  no  resulting  use  to  him, 
and  his  issue  would  take  as  purchasers.^ 

1  1  Prest.  Est.  191 ;  Wilkins  v.  Perrat,  F.  Moore,  876  ;  Woodliff  v.  Drury,  Cro. 
Eliz.  439 ;  Pibus  v.  Mitford,  1  Ventr.  372  ;  Tipping  v.  Cozens,  1  Ld.  Raym.  33  ; 
Tud.  Lead.  Cas.  258  ;  1  Cruise,  Dig.  370 ;  Sand.  Uses,  103,  104  ;  FearHs,  Cent. 
Rem.  48 ;  tDo.  Lit.  23  a  ;  Kenniston  v.  Leighton,  43  N.  H.  311 ;  Farringtou  ?;. 
Barr,  36  N.  H.  88,  89. 

•^  Van  der  Volgen  v.  Yates,  9  N.  Y.  223. 

3  Bac.  Law  Tracts,  350. 

*  Sir  Edward  Clere's  case,  6  Rep.  17  ;  Bac.  Law  Tracts,  350. 

6  I^eckwith's  case,  2  Rep.  56  a  ;  1  Cruise,  Dig.  372. 

6  1  Prest.  Est.  194  ;  Co.  Lit.  22  b,  note  135  ;  Sand.  Uses,  132  ;  Fearne,  Cent. 
Rem.  51  ;  Tippin  v.  Cosin,  Carth.  272  ;  s.  c.  4  Mod.  380  ;  Shelley's  case,  1  Rep.  95; 
Sand.  Uses,  132.  See  post,  §  1399,  for  the  distinction  between  a  limitation  over  to 
the  heirs  of  the  body  of  the  grantor  and  his  heirs  generally. 


404  USES   AFTER   THE   STATUTE    OF   USES. 

§1387.  "What  Consideration  prevents  Use  from  resulting. — 
But  a  consideration,  though  merely  a  nominal  one,  as  five 
shillings,  for  instance,  if  actually  paid,  or  even,  as  was  held 
in  one  case  of  lease  and  release,  a  rent  reserved  of  a  pepper- 
corn, would  be  sufficient  to  make  a  good  conveyance,  and  to 
prevent  the  use  from  resulting.^  And  the  same  effect,  it  would 
seem,  would  follow  from  an  express  acknowledgment  of  the 
receipt  of  a  consideration  in  a  deed ;  for  "  an  averment  shall 
not  be  allowed  or  taken  against  a  deed  that  there  was  no  con- 
sideration given,  when  there  is  an  express  consideration  upon 
the  deed."^* 

§  1388.  Declaration  of  Use  prevents  a  resulting  one.  —  And 
although  there  be  no  consideration  expressed,  if  the  use  is 
expressly  declared,  and  it  covers  the  entire  estate,  there  will 
be  no  resulting  use.^ 

§  1389.  Uses  only  result  to  the  Original  Owner  of  the  estate 
out  of  which  they  are  raised.  And  when  they  do  result  or 
arise  by  implication,  they  are  of  the  same  character  with  the 
estate  which  the  owner  had  in  the  land.  Thus  if  two  joint- 
tenants  so  create  an  estate  that  the  use  results  to  them,  it  is  to 
them  as  joint-tenants ;  or  if  one  of  two  grantors  have  a  rever- 
sion, and  another  the  life-estate  on  which  the  reversion  depends 
and  a  use  results,  it  is  to  them  in  the  same  character  and 
quality.  Or  if  A  and  B  join  in  conveying  B's  land,  and  a 
use  results,  it  is  to  B  alone.* 

*  Note.  —  Though  a  conveyance  would  be  good  at  law  if  made  for  a  valuable 
coneideratiou  to  the  extent  of  a  farthing  only.  And,  after  the  statute,  chancery 
could  not  have  impeached  its  effect  as  a  conveyance  in  transferring  the  legal  es- 
tate ;  yet,  if  it  were  not  made  for  a  substantial  consideration,  chancery  would  hold 
the  bargainee  to  be  a  trustee  of  the  bargainor,  and  compel  him  to  convey  the 
estate  to  the  bargainor ;  thus  giving  the  practical  effect  of  a  resulting  use  by 
means  of  a  decree  in  equity.  Gilbert,  Uses,  Sugd.  ed.  Introd.  Ixi ;  1  Spence, 
Eq.  Jur.  467. 

1  Tud.  Lead.  Cas.  258  ;  Sand.  Uses,  104  ;  Barker  v.  Keat,  2  Mod.  249  ;  Gilb. 
Uses,  Sugd.  ed.  230,  n.  ;  Moore  v.  Bickham,  4  Binn.  1. 

2  3  Wood,  Conv.  285  ;  Fisher  v.  Smith,  F.  Moore,  569  ;  Wilt  v.  Franklin, 
1  Binn.  518,  per  Tilghman,  C.  J. ;  id.  519,  per  Yeates,  J.  It  is  necessary  to  state  a 
valuable  consideration  to  raise  a  use  by  bargain  and  sale  ;  but  it  is  not  necessary  to 
state  the  amount.     Okison  v.  Patterson,  1  Watts  &  S.  395. 

3  Sprague  v.  Woods,  4  Watts  &  S.  192 ;  Tippin  v.  Co.son,  4  Mod.  380 ;  1  Prest. 
E.st.  193  ;  Graves  v.  Graves,  29  X.  H.  129. 

*  1  Prest.  Est.  195 ;  Beckwith's  case,  2  Rep.  58  ;  1  Cruise,  Dig.  373. 


USES    AFTER    THE   STATUTE    OF   USES.  405 

§  1390.  Uses  limited  as  they  •would  result  are  void.  —  If  a 
use  is  limited  in  terms  after  another  use  to  the  same  effect  as 
it  would  have  resulted  in  favor  of  the  grantor,  the  grantor  is 
in  of  his  old  use,  and  such  limitation  is  void.  Thus  if  the  limi- 
tation were  to  the  use  of  one  and  his  heirs,  during  the  life  of 
the  grantor,  to  the  use  of  the  grantor's  heirs  generally  after  his 
death,  his  heirs  would  not  take  by  purchase  as  remainder-men, 
but  by  descent  as  reversioners.  And  the  distinction  between 
this  and  a  former  proposition,  where  the  limitation  over  was  to 
the  use  of  the  heirs  of  the  grantor's  body,  will  be  obvious  upon 
reflection,  since,  in  the  latter  case,  the  heirs  take  a  contingent 
remainder,  —  a  different  estate  from  that  of  their  ancestor. ^ 
And  the  same  principle  is  applied  to  cases  of  devises  to  heirs 
at  law.  Independent  of  statutes  upon  this  subject,  devises  to 
heirs  of  the  same  estates  as  tliey  would  have  taken  by  descent 
were  void,  and  the  heirs  took  as  heirs,  and  not  as  devisees  or 
purchasers.  But  this  is  now  altered  in  England  by  statute.^  So, 
upon  the  same  principle,  if  one  were  to  limit  a  use  to  his  son 
and  the  heirs  of  his  body,  the  son  would  take  an  estate  tail  as 
a  purchaser ;  but  if  there  had  been  a  limitation  over  of  a  use  to 
his  own  heirs  by  way  of  remainder,  his  heirs  would  take  this 
as  a  resulting  use,  and  not  as  a  remainder.^ 

§  1391.  Presumption  of  resulting  Use  rebuttable. — The  doc- 
trine of  a  resulting  use  rests  upon  the  presumption  of  equity 
that  the  owner  of  land  does  not  intend  to  part  with  the  same 
without  a  consideration,  in  the  absence  of  any  evidence  of  such 
intention  contained  in  the  deed  or  instrument  of  conveyance. 
It  may  now  be  added  that,  like  legal  presumptions,  this  may 
be  controlled  by  evidence  that  it  was  the  intention  of  the 
grantor  that  the  use  should  go  with  the  legal  estate.  This 
evidence  may  be  derived  from  circumstances  or  from  positive 
evidence,  and  parol  evidence  is  competent  to  establish  such  an 
intention.  Thus,  where  A  enfeoffed  B  upon  condition  that  B 
should  reconvey  to  A  for  life,  with  remainder  to  the  oldest  son 

1  Shelley's  case,  1  Rep.  95  ;  Co.  Lit.  22  b;  Else  v.  Osborn,  1  P.  Wms.  387  ; 
Fenwick  v.  Mitfortb,  F.  Moore,  285  ;  Sand.  Uses,  133  ;  Watk.  Conv.  (White's  ed. 
1838)  172,  n.  ;  Co.  Lit.  22  b,  in.  134  ;  id.  n.  135  ;  Tijipin  v.  Coson,  Carth.  273  ; 
Bedford's  case,  F.  Moore,  720. 

2  Wms.  Real  Prop.  181  ;  1  Jarm.  Wills,  67  ;  Stat.  3  &  4  Wm.  lY.  c.   106,  §  3. 
8  Bedford's  case,  F.  Moore,  720  ;  Co.  Lit.  22  b ;  Read  v.  Erington,  Cro.  Eliz.  321. 


406  USES  AFTER  THE  STATUTE  OF  USES. 

of  A,  it  was  held  that  no  use  resulted  to  A,  but  tliat  the  whole 
estate  vested  in  B,  as  he  could  not  otherwise  convey  an  estate 
to  A  and  to  his  son.^ 

§  1392.  Parol  Evidence  to  rebut  resulting  Use.  —  The  seventh 
section  of  the  statute  of  frauds,  requiring  declarations  or  crea- 
tions of  trust  or  confidence,  etc.,  to  be  in  writing,  applies  to 
uses  and  trusts  declared  or  raised  in  favor  of  persons  other 
than  the  one  declaring  or  creating  them;^  and  the  statute  ex- 
pressly excepts  from  its  operation  trusts  or  confidences  which 
arise  or  result  by  the  implication  or  construction  of  law.  And 
accordingly,  where  the  plaintiff  set  up  a  resulting  trust,  verbal 
evidence  of  his  admission  that  the  whole  land  was  the  defend- 
ant's, and  that  he  had  nothing  to  do  with  it,  was  held  com- 
petent ;2  though,  as  heretofore  stated,  where  there  is  a  use 
declared  by  the  instrument  conveying  the  estate,  it  cannot  be 
negatived  or  controlled  by  parol  evidence.^ 

§  1393.  No  Use  results  if  one  expressed.  —  The  law  will  not 
imply  a  use  in  favor  of  the  grantor  if  the  deed  limits  the  estate 
to  the  use  of  the  grantee,  though  it  be  made  without  any  con- 
sideration.^ Nor  will  a  use  result  to  one  man  where  another 
has  paid  the  consideration  for  the  conveyance.^  So,  where  the 
owner  expressly  limits  a  use  to  himself,  it  precludes  the  idea 
of  his  intending  to  reserve  to  himself  a  different  use;  and 
therefore  the  law  will  not  raise  one  by  implication  which  is 
inconsistent  with  the  one  so  limited.  Thus  where  one  makes 
a  feoffment  to  his  own  use  for  forty  years,  without  limiting 
any  other  use,  the  effect  will  be  to  leave  the  inheritance  in  the 

1  Winningtou's  case,  Jenkins,  253. 

2  Capen  v.  Richardson,  7  Gray,  369  ;  Walker  v.  Locke,  5  Cush.  90  ;  Browne, 
Stat.  Frauds,  §  83  et  seq. 

3  Botsford  V.  Burr,  2  Johns.  Ch.  405. 

*  Lewis  V.  Lewis,  2  Rep.  in  Chanc.  77  ;  Lewin,  Trusts,  27  ;  1  Spence,  Eq.  Jur. 
451,  511  ;  St.  John  v.  Benedict,  6  Johns.  Ch.  116,  117.  And  for  the  general  prin- 
ciple of  proving  or  controlling  the  intention  of  a  grantor  as  to  a  use  resulting,  etc., 
see  Walker  r.  Walker,  2  Atk.  98  ;  Lake  v.  Lake,  Ambl.  127  ;  Sand.  Uses,  104  ; 
1  Cruise,  Dig.  375  ;  1  Spence,  Eq.  Jur.  511  ;  Browne,  Stat.  Frauds,  §  92 ;  3  Sugd. 
Vend.  &  P.  Hamni.  ed.  260  ;  Roe  d.  Roach  v.  Popham,  Dougl.  25 ;  Boyd  v.  ISI'Lean, 
1  Johns.  Ch.  582  ;  Peabody  v.  Tarhell,  2  Cu.sh.  232 ;  Altham  v.  Anglesea,  per  Holt, 
G.  J.,  11  Mod.  210  ;  Mass.  Pub.  Stat.  c.  141,  §  1  ;  Tud.  Lead.  Cas.  258  ;  Lamp- 
lughv.  Lamplugh,  1  P.  Wms.  112. 

8  Graves  v.  Graves,  29  N.  H.  129. 

6  Capen  v.  Richardson,  7  Gray,  370. 


USES   AFTER   THE    STATUTE    OF    USES.  407 

feoffee,  as  otherwise  the  use  I'or  the  forty  years  being  expressly 
limited  to  the  feoffor,  if  the  remainder  is  his  by  implication  or 
as  a  resulting  use,  it  would  be  executed  in  him,  and  the  term 
as  a  lesser  estate  would  be  merged  in  the  fee,  and  thereby  de- 
feat the  feoffment  in  the  feoffee  altogether.^  So  w'here  the  use 
limited  by  the  feoffor  in  his  own  favor  was  for  a  term  of  years, 
with  a  remainder  to  take  effect  after  his  death,  there  would  not 
be  any  use  resulting  or  raised  by  implication  in  his  favor  for 
life,  by  reason  of  the  express  limitation  for  years.^ 

§  1394.  Doctrine  of  Uses  applied  to  Devises.  —  Thus  far  USes 
have  been  treated  of  as  they  relate  to  conveyances  of  land  inter 
vivos.  But  though  the  statute  of  wills  was  not  passed  until  the 
32  Hen.  VIII.,  estates  created  by  will  are  governed  by  the  rules 
derived  from  the  statute  of  uses,  the  legal  estate  being  trans- 
ferred to  the  use  in  the  same  mode  as  by  the  operation  of  that 
statute.  Thus,  if  there  were  a  devise  simply  to  A  to  the  use 
of  B,  or  in  trust  for  B,  the  statute  would  execute  it  at  once 
in  B.^  So  a  devise  by  a  testator  of  his  lands  to  his  executor  in 
trust  for  his  brother  and  wife,  that  he  should  permit  them  to 
occupy  the  same  during  their  lives,  is  an  executed  use  for  life 
in  husband  and  wife.^  But  if  it  had  been  to  A  and  to  his  use, 
to  the  use  of  or  in  trust  for  B,  it  would  be  a  use  upon  a  use, 
and  the  legal  estate  would  stop  in  A,  but  the  equitable  estate 
or  trust  would  be  in  B.^  Whether  the  devise  shall  take  effect 
as  an  executed  use,  or  as  a  trust,  depends  upon  the  intention  of 
the  devisor,  as  expressed  by  the  instrument  creating  the  devise.^ 
If  there  is  any  active  duty  imposed  upon  the  devisee  of  the 
legal  estate,  in  carrying  out  the  purposes  of  the  devise  in  favor 
of  the  cestui  que  icse,  which  requires  him  to  be  vested  with  the 
legal  estate,  it  becomes  a  trust  in  the  first  taker,  and  the  cestui 
que  use  is,  in  modern  language,  a  cestui  que  trust,  the  legal 

1  1  Cruise,  Dig.  376  ;  Bedford's  case,  F.  Moore,  720  ;  Tud.  Lead.  Cas.  258  ; 
1  Preat.  Est.  195. 

2  Adams  v.  Savage,  2  Salk.  679  ;  Rawley  v.  Holland,  2  Eq.  Cas.  Abr.  753  ; 
1  Prest.  Est.  195  ;  Sand.  Uses,  142. 

8  Tud.  Lead.  Cas.  268  ;  Gilb.  Uses,  Sugd.  ed.  356  ;  Sand.  Uses,  243  ;  Co.  Lit. 
271  b,  n.  231,  §  3,  pt.  5  ;  2  Jarm.  Wills,  196. 

*  Upham  V.  Varney,  15  N.  H.  464. 

s  2  Jarm.  Wills,  197. 

8  Co.  Lt.  271  b,  n.  331,  §  3,  pt.  5  ;  Sand.  Uses,  242  ;  Broughton  v.  Langley, 
1  Lutw.  823  ;  Bagshaw  v.  Spencer,  2  Atk.  576. 


408  USES  AFTER  THE  STATUTE  OF  USES. 

seisin  and  estate  vesting  in  the  trustee.^  In  the  cases  supposed 
it  makes  no  difference  in  the  effect  whether  the  word  "  use  " 
or  "  trust "  be  used  by  the  devisor  in  speaking  of  the  equitable 
interest  intended  to  be  created.^ 

§  1395.  No  Resulting  Use  for  Lack  of  Consideration.  —  The  doc- 
trine of  uses  resulting  to  the  one  wiio  creates  them,  where 
there  is  no  consideration  or  express  declaration  of  the  use,  does 
not  apply  to  cases  of  devise ;  for  a  devise  always  implies  a  con- 
sideration, and  the  use  will  always  be  in  the  devisee,  unless  the 
contrary  appears  in  the  devise  itself,  and  that  what  is  thereby 
given  is  not  to  be  to  the  use  of  the  devisee.^ 

§  1396.  If  Use  fails  it  results.  —  But  if  a  person  be  merely 
named  as  a  devisee  to  uses,  and  the  use  fails,  there  will  be  a 
resulting  use  to  the  heirs  of  the  devisor.*  [And  this  is  true 
where  the  use  is  void  for  illegality  as  a  disposition  in  favor  of 
persons  or  objects  forbidden  from  taking,  or  in  violation  of  the 
statutes  of  mortmain,  or  as  tending  to  a  perpetuity.^  How- 
ever, a  void  use  will  not  cause  a  use  to  result  to  the  devisor  or 
his  heirs  where  it  is  limited  to  take  effect  by  way  of  shifting 
use,  in  derogation  of  a  prior  estate.  Thus  a  use  void  as  against 
perpetuities,  limited  to  take  effect  by  way  of  shifting  use  to 
defeat  a  prior  estate  in  fee-simple,  will  not,  upon  the  happening 
of  the  contingency,  cause  the  use  to  result  to  the  grantor,  but 
will  leave  the  prior  fee-simple  estate  indefeasible.^] 

§  1397.  How  Uses  may  be  destroyed  or  suspended.  —  Uses 
cannot  be  extinguished,  destroyed,  or  suspended,  if  they  have 
once  been  actually  executed  by  the  statute,  since,  by  such  ex- 
ecution, the  union  of  the  seisin  and  use  has  created  a  legal 
estate.  But  contingent  uses  may  be  extinguished  or  suspended. 
Thus  if  A  makes  a  feoffment  to  the  use  of  B  and  the  wife  he 

1  Doe  d.  Booth  v.  Field,  2  Barn.  &  Ad.  564  ;  Sand.  Uses,  244  ;  Tenny  v.  Moody, 
3  Bing.  3 ;  Doe  d.  Gratrex  v.  Homfray,  6  Ad.  &  E.  206  ;  Tud.  Lead.  Cas.  268 ;  Har- 
top's  case,  1  Leon.  253  ;  Upham  v.  Varney,  15  N.  H.  467  ;  Norton  v.  Leonard,  12 
Pick.  152  ;  Ayer  v.  Ayer,  16  Pick.  327  ;  Branaan  v.  Stiles,  2  Pick.  460 ;  Wood  v. 
Wood,  5  Paige,  596. 

2  Doe  d.  Terry  v.  Collier,  11  East,  377. 

8  Gilb.  Uses,  162  ;  Sand.  Uses,  242  ;  Vernon's  case,  4  Rep.  4  a  ;  1  Lutw.  823  ; 
1  Cruise,  Dig.  378. 

*  Hartop's  case,  1  Leon.  254 ;  Gilb.  Uses,  Sugd.  ed.  486,  note. 

6  1  Perry  on  Trusts,  §  160. 

6  Brattle  Square  Church  v.  Grant,  3  Gray,  156. 


USES  AFTER  THE  STATUTE  OF  USES.  409 

shall  marry,  and  the  feoffees  make  a  feoffment  over  before  the 
marriage  of  B,  the  contingent  use  to  the  wife  is  gone  ;  the 
seisin  that  was  to  sustain  it,  and,  by  being  united  with  it,  was 
to  give  effect  to  the  use,  is  no  longer  in  the  feoffee.  The  same 
would  be  the  effect  if  the  feoffee  to  use  were  disseised  before 
the  contingent  use  vested,  with  this  difference,  that,  if  the 
feoffee  were  to  re-enter  and  regain  the  seisin,  the  old  use  would 
revive,  so  that,  instead  of  being  destroyed,  it  would  only 
have  been  suspended.  So  if  the  feoffment  be  to  the  use  of 
feoffor  for  life,  remainder  to  the  use  of  the  heirs  of  J.  S.,  and 
the  feoffor  die  before  J.  S.,  the  contingent  remainder  is  lost  for 
want  of  a  particular  estate  to  sustain  it.  So  where  the  estate 
out  of  which  the  uses  arise  is  gone,  the  uses  are  gone  also ;  as 
where  a  lease  was  made  to  A  for  life,  to  the  use  of  B  for  life, 
and  A  dies,  the  estate  in  B  is  gone.^  This  more  naturally, 
perhaps,  belongs  to  the  subject  of  contingent  remainders, 
though  it  may  be  stated  that  no  conveyance  under  the  statute 
of  uses  in  this  country,  or  by  deeds  authorized  by  statute  here, 
has  the  effect  to  defeat  contingent  remainders. ^ 

§  1398.  Importance  of  Uses  in  Conveyancing.  —  Enough  has 
been  shown  in  what  has  herein  been  said  to  justify  an  allusion 
to  the  importance  of  the  doctrine  of  uses  as  applied  to  modern 
conveyances.  The  language  of  Mr.  Preston  upon  the  subject 
is,  that  "  within  the  whole  scope  of  that  learning  which  is  more 
particularly  to  be  studied  by  the  conveyancer,  there  is  none 
more  important  to  be  known  than  that  which  concerns  the  doc- 
trine of  uses ;  for  there  are  many  things  which  may  be  done 
through  the  medium  of  a  conveyance  to  uses,  or  under  the 
statute  of  uses,  without  a  conveyance,  which  cannot  be  accom- 
plished by  a  conveyance  merely  and  simply  at  common  law ; 
and  consequently  there  are  many  occasions  in  which  it  is  abso- 
lutely necessary  to  resort  to  the  learning  of  uses  in  framing  a 
conveyance,  or  for  giving  it  effect."  ^ 

§  1399.  How  Uses  are  prevented  from  resulting.  —  To  prevent 
any  inference  of  a  resulting  use  in  the  grantor,  it  is  usual  to  ac- 

1  3  Wood,  Conv.  296  ;  Chudleigh's  case,  1  Rep.  126. 

2  Dennett  v.  Dennett,  40  N.  H.  498  ;  Gilb.  Uses,  Sugd.  ed.  232,  n.,  312  ;  2  Sand. 
Uses,  54  ;  Den  d.  Micheau  i-.  Crawford,  8  N.  J.  L.  107. 

8  1  Prest.  Abst.  311.     See  Cornish,  Uses,  22,  23. 


410  USES   AFTER   THE   STATUTE   OP   USES. 

knowledge  a  consideration  received  on  the  part  of  the  grantor ; 
and  though,  as  ah-eady  stated,  it  is  competent  to  show  by  parol 
that  a  larger  or  smaller  sum  than  that  mentioned  in  the  deed 
has  been  actually  paid,  it  is  not  competent  for  the  grantor, 
in  the  absence  of  fraud,  to  negative  the  receipt  of  such  con- 
sideration as  will  give  full  effect  to  the  deed  as  a  conveyance.^ 
But  if  it  is  necessary  in  order  to  give  effect  to  a  deed,  the 
grantee  may  show  aliunde,  that  the  relation  of  kindred  or  mar- 
riage existed  between  the  grantor  and  grantee,  although  not 
mentioned  in  the  deed,  and  although  the  consideration  recited 
was  a  pecuniary  one.'^  So,  for  the  same  reason,  it  is  usual  to 
declare  a  use  in  the  deed  in  favor  of  the  grantee  and  his  heirs ; 
although,  where  the  grantee  named  is  both  feoffee  and  cestui 
que  use,  the  conveyance  takes  effect  under  and  by  virtue  of  the 
common  law,  and  derives  no  validity  as  such  from  the  statute 
of  uses.^ 

§  1400.  General  Application  of  Uses  in  Conveyancing.  —  In  few 
of  the  States  are  there  any  prescribed  forms  of  deeds  which  it 
is  necessary  to  follow  in  executing  conveyances  of  lands.  In  a 
large  proportion  of  them,  the  form  is  that  of  bargain  and  sale, 
though  other  forms  which  clearly  indicate  the  intention  of  the 
grantor  to  pass  the  estate  are  held  sufficient.  In  several  of 
these  States  the  forms  of  English  conveyances  of  feoffment, 
bargain  and  sale,  lease  and  release,  and  covenant  to  stand 
seised,  are  recognized  by  statute  as  modes  in  use;  while  the 
forms  of  attesting,  acknowledging,  and  recording  the  same  are 
prescribed  by  the  same  statute.  In  some  of  the  States,  the 
statute  of  uses  has  been  adopted  and  recognized  as  a  part  of  the 
common  law.  Such  is  the  case  in  Massachusetts,  Connecticut, 
New    Hampshire,   Alabama,    and    Rhode  Island.^     Thus,    in 

1  3  Wood,  Conv.  285  ;  Gilb.  Uses,  51  ;  1  Greenl.  Ev.  §  26,  note  2  ;  Sand.  Uses, 
47  ;  Belden  v.  Sfi3'monr,  8  Conn.  313. 

2  Gale  V.  Coburn,  18  Pick.  397  ;  Brewer  v.  Hardy,  22  Pick.  376  ;  Bryan  v. 
Bradley,  16  Conn.  474.  See  contra,  2  Sand.  Uses,  48.  And  see  Gilb.  Uses,  Sugd. 
ed.  253. 

8  1  Prest.  Abst.  101  ;  Wms.  Real  Prop.  132,  154  ;  Belden  v.  Seymour,  8  Conn. 
304. 

*  Johnson  v.  Johnson,  7  Allen,  197  ;  Bryan  v.  Bradley,  16  Conn.  483  ;  Bell  v. 
Scanimon,  15  I^.  H.  394  ;  Rollins  v.  Riley,  44  N.  H.  11  ;  Horton  v.  Sledge,  29 
Ala.  496  ;  Nightingale  v.  Hidden,  7  R.  I.  132  ;  Sprague  v.  Spragiie,  13  R.  I.  701. 


USES   AFTER   THE   STATUTE   OF   USES.  411 

Nightingale  v.  Hidden,^  the  deed  was  to  S,  habendum  to  him 
and  his  heirs,  to  and  for  the  proper  use,  benefit,  and  behoof  of 
E  and  her  heirs,  and  it  was  held  to  create  an  executed  estate 
in  E.  In  others  it  has  never  been  so  recognized.  In  others 
still  it  has  been  expressly  determined  not  to  form  a  part  of  the 
common  law  ;  while  the  statute  of  uses  in  some  of  the  States 
is  supplied  by  statutory  enactments  which  contain  in  a  declar- 
atory form  substantially  the  modifications  which  had  been 
introduced  into  the  common  law  system  of  conveyances  by 
means  of  uses,  answering  to  springing  and  shifting  uses, 
powers,  and  the  like.  Thus,  in  Michigan  and  Wisconsin,  a 
deed  to  A,  in  trust  for  B,  makes  B  the  legal  owner  of  the  es- 
tate.2  With  such  a  variety  of  forms  and  systems  of  convey- 
ances, it  would  be  inexpedient  to  attempt  to  define,  with  any 
considerable  degree  of  precision,  how  far  uses  are  in  force  in 
each  of  these  States.  The  most  that  will  be  attempted  will  be 
to  state  generally  under  what  circumstances  they  have  been 
recognized  in  some  of  the  States,  referring  to  the  work  of  Mr. 
Thornton  on  Conveyances  for  authority,  where  other  references 
are  not  specially  made.^  In  those  States  in  which  the  use  is 
executed  in  the  cestui  que  use  by  statute,  there  is  either  an 
express  re-enactment  of  the  statute  of  uses,'^  or  the  statute  of 
uses  is  expressly  abolished,  and  provisions  are  made  that  all 
estates  and  interests  in  land  are  legal  rights,  that  the  right  to 
possess  the  land  and  receive  the  rents,  in  law  or  equity,  makes 
a  legal  ownership  of  the  same  quality  as  the  beneficial  interest, 
that  a  disposition  of  the  land  to  one  for  the  benefit  of  another 
vests  no  legal  estate  in  the  trustee,  and  that  all  estates  held 
as  executed  uses  are  confirmed  as  legal  estates,  or  similar 
provisions.^ 

1  7  R.  1. 132. 

2  Ready  v.  Kearsley,  14  Mich.  228;  Riehl  v.  Bingenheiraer,  28  Wis.  84. 

8  Foi'  the  extent  to  which  uses  are  applied  in  the  United  States,  see  Hill,  Trus- 
tees, Whart.  ed.  p.  230,  note. 

*  Illinois,  Rev.  Stat.  1899,  p.  403,  §  3;  South  Carolina,  Rev.  Stat.  1893, 
§§  2089-2091  ;  Missouri,  Rev.  Stat.  1899,  §  4.589. 

6  New  York,  Rev.  Stat.  1896,  p.  1795,  §§  45-49  ;  Michigan,  Annot.  Stat.  1882, 
§  5563  et  seq.  ;  Wisconsin,  S.  &  B.  Annot.  Stat.  1889,  §  2071  ;  Minnesota,  Stat. 
1891,  §  4003  ;  New  Jersey,  Gen.  Stat.  1896,  p.  877,  §  119  ;  Delaware,  Rev.  Code, 
1874,  c.  83,  §  1  ;  Alabama,  Code,  1896,  §  1027  ;  Indiana,  Rev.  Stnt.  1894,  §  3403; 
Kansas,  2  Gen.  Stat.  1897,  p.  589,  §  13  ;  Georgia,  Code,  1895,  §  3157. 


412  USES  AFTER  THE  STATUTE  OP  USES. 

S  1401.  "Where  Resort  has  been  had  to  the  Doctrine  of  Uses, 
the  parties,  in  undertaking  to  convey  lands,  have  failed  to 
follow  the  form  in  use  in  the  State,  or. have  undertaken,  by  a 
form  borrowed  from  the  common  law,  to  create  an  interest 
like  a  freehold  infuturo,  for  instance,  which  could  not  be  done 
by  construing  the  conveyance  as  one  deriving  its  validity 
from  the  common  law,  and  resort  has  been  had  to  the 
doctrine  of  uses  in  order  to  effectuate  the  intention  of  the 
parties.^ 

1  2  Smith,  Lead.  Cas.  5th  Am.  ed.  463.  For  instance,  if  a  deed  does  not  contain 
words  of  grant,  but  may  be  valid  as  a  covenant  to  stand  seised,  it  will  be  so  con- 
strued.    Eysaman  v.  Eysaman,  24  Huu,  430. 


THEIR   NATURE,   DURATION,   QUALITIES,   AND    INCIDENTS.      413 


CHAPTER  LYII. 

TRUSTS  —  THEIR   NATURE,   DURATION,   QUALITIES,   AND   INCIDENTS. 

§  1402.  Use  and  trust  formerly  alike. 

1403.  Principles  of  the  statute  of  uses. 

1404.  How  the  modern  trust  was  evolved. 

1405.  Trusts  defined. 

1406.  When  the  statute  failed  to  execute  the  seisin  in  the  use. 

1407.  Tyrrel's  Case  —  No  use  upon  a  use. 

1408.  How  far  trusts  revocable. 

§  1402.  Use  and  Trust  formerly  alike.  —  Although,  as  has 
been  shown  in  the  preceding  chapter,  the  equitable  or  beneficial 
interest  which  one  man  had  in  land  which  in  the  eye  of  the 
common  law  belonged  to  another,  was  commonly  called  a  use, 
it  was  also  often  called  a  trust,  these  being,  in  fact,  convertible 
terms  prior  to  the  statute  of  27  Hen.  VHI. ;  and  the  word 
"trust"  is  mentioned  even  in  that  statute,  as  well  as  "  use."  ^ 
These  terms,  however,  were  at  that  time  understood  to  indicate 
equitable  interests  of  somewhat  different  natures.  If  the 
interest  was  a  permanent  enjoyment  of  the  benefit  or  profits 
of  the  land,  separate  from  the  possession,  it  was  called  a  use. 
If  it  was  for  a  temporary  purpose,  as  the  raising  of  a  sum  of 
money  out  of  the  land,  it  was  a  trust.  And  in  this  sense, 
though  every  use  was  a  trust,  not  every  trust  was  a  use.^ 

§  1403.  Principles  of  the  Statute  of  Uses,  —  The  rules  which 
regulate  trusts  are  based  upon  the  principles  of  a  refined  moral 
duty  between  persons  who  stand  in  the  relation  of  confidence 
to  each  other.  The  statute  of  27  Hen.  VIII.  c.  10,  has  been 
pretty   fully    considered.^     It   classes   "  trusts,"  "  uses,"    and 

1  2  Crabb,  Real  Prop.  512 ;  2  P,l.  Com.  327  ;  1  Prest.  Est.  184. 

2  1  Prest.  Est.  185  ;  Cornish,  U.ses,  14,  15;  1  Spence,  Eq.  Jur.  448,  who  dis- 
tinguishes them  thus,  —  the  one  "  an  use  or  permanent  trust,"  the  other  *'  a  tem- 
porary, special,  or  active  trust." 

3  Ante,  §  1346  et  seq. 


414  TRUSTS. 

"confidences"  in  one  category,  and  undertakes  to  apply  the 
same  remedy  to  all  by  uniting  the  legal  with  the  equitable  in- 
terest into  a  new  legal  estate.  But  it  became  apparent,  upon 
applying  this  statute,  that  there  were  cases  where  this  could  not 
be  done  witliout  defeating  the  obvious  provisions  of  the  trust, 
or  extending  the  language  of  the  statute  beyond  its  necessary 
meaning.  Where  the  use  could  not  be  thus  executed,  the 
legal  estate  was  necessarily  left  as  at  common  law.  But 
equity,  perceiving  that  to  allow  the  holder  of  the  legal  estate 
to  have  the  beneficial  use  of  it  was  contrary  to  the  intention 
of  the  parties,  interposed  to  hold  the  tenant  of  the  legal  estate 
a  trustee  for  him  who  was  entitled  to  the  beneficial  use  of  it; 
and  the  consequence  was,  tliat,  while  one  party  had  a  right  to 
the  seisin  and  possession  of  land  as  at  common  law,  equity 
regarded  him  for  whose  use  the  land  was  designed  as  the 
rightful  owner  thereof,  and  in  this  way  there  early  grew  up 
a  double  ownership  of  lands  thus  situated,  the  legal  and  the 
equitable  one. 

§  1404.  How  the  Modern  Trust  was  evolved.  —  Thus  it  was 
held,  that  as  a  use  was  executed  by  uniting  the  seisin  which 
was  in  one  with  the  use  which  was  in  another,  and  as  there 
could  be  no  seisin,  properly  speaking,  of  a  use,  if  there  were 
a  feoffment  to  A,  to  the  use  of  B,  to  the  use  of  C,  the  seisin 
in  A  passed  to  and  was  executed  to  the  use  in  B.  But  as  only 
a  use  was  given  to  B,  it  was  held  that  the  seisin  which  the 
statute  united  to  the  use  in  B  did  not  pass  from  him  to  C,  and 
it  consequently  left  the  seisin  in  B,  as  the  legal  owner.  In 
order,  however,  to  give  effect  to  the  second  part  of  the  limita- 
tion, equity  came  in  and  required  B  to  hold  the  estate  to  the 
use  of  C,  and  called  this  a  trust.  So  it  often  happened  that 
lands  were  given  to  one  to  do  certain  acts  in  respect  to  the 
same  for  the  benefit  of  a  third  person,  a  feme  covert,  for 
instance,  which  required  him  to  hold  the  seisin  and  legal  es- 
tate. In  such  a  case,  inasmuch  as  to  execute  the  use  in  the 
one  for  whose  benefit  the  land  was  granted  or  devised  would 
defeat  the  purposes  of  such  grant  or  devise,  the  seisin  was 
held  to  remain  in  the  grantee  or  devisee,  while  equity  required 
him  to  perform  the  duty  or  confidence  imposed  upon  him 
under  the  name  of  a  trust.     So,  where  land  is  given  to  A  for  a 


THEIU    NATURE,    DURATION,    QUALITIES,    AND    INCIDENTS.       415 

term  of  years  in  trust  for  B,  it  is  a  technical  trust,  since  the 
statute  of  uses  only  executes  a  use  in  cases  where  a  seisin  is 
united  with  it.^  And  whei-e  the  grant  was  to  A  and  his  heirs 
to  receive  the  rents  and  pay  them  over  to  B  and  his  lieirs,  it 
was  held  to  be  a  trust  wliich  descended  to  the  heirs  of  B,  and 
that  B  could  not  convey  the  land.^ 

§  1405.  Trusts  defined. — A  trust  may,  therefore,  he  defined 
as  a  use,  which,  though  lawful  in  itself,  the  statute  does  not 
operate  upon  to  execute  in  the  cestui  que  use,  whereby  the  legal 
estate  is  in  one,  wliile  another  has  a  right  to  a  beneficial  inter- 
est in  and  out  of  the  same,^  the  first  being  termed  a  trustee, 
the  other  a  cestui  que  trust.  Thus,  for  illustration,  a  grant  or 
devise  to  A  in  trust  for  B,  or  to  permit  B  to  take  the  rents 
and  profits,  would  be  an  executed  use  in  B,  unless  B  was  a 
feme  covert,  when,  in  order  to  carry  out  the  grantor's  or 
devisor's  intent,  it  would  be  a  trust,  or  use  not  executed.^  If, 
oil  the  contrary,  the  trust  is  created  for  some  special  purpose, 
as  to  convey  the  estate,  or  exercise  control  over  it,  such  as 
paying  the  taxes,  or  making  repairs  upon  it,  and  tlie  like,  it  is 
a  trust  which  the  statute  will  not  execute,  and  of  course  it 
leaves  the  legal  estate  in  the  trustee.^  And  if  there  be  no 
determinate  person  who  has  a  right  to  claim  as  a  beneficiary, 
it  lacks  an  essential  element  of  a  trust,  because  a  court  of 
equity  has  no  means  of  knowing  how  to  cause  it  to  be  executed 

1  2  Sharsw.  Bl.  Com.  335-337  ami  notes ;  2  Crabb,  Real  Prop.  507  ;  1  Prest. 
Est.  190  ;  Cornish,  Uses,  27-29  ;  1  Spence,  Eq.  Jur.  466  ;  id.  490  ;  1  Sand.  Uses, 
266 ;  Hopkins  v.  Hopkins,  per  Lord  Hardwicke,  1  Atk.  591  ;  1  Eq.  Cas.  Abr.  383  ; 
Fletch.  Trust.  27  ;  Ashhurst  v.  Given,  5  Watts  &  S.  327. 

2  Harlow  v.  Cowdrey,  109  Mass.  183. 

3  Tud.  Lead.  Cas.  276 ;  2  BL  Com.  336  ;  1  Prest.  Est.  186  ;  1  Spence,  Eq.  Jur. 
494  ;  Fisher  v.  Fields,  10  Johns.  505. 

*  1  Prest.  Est.  190  ;  Tud.  Lead.  Cas.  268  ;  Doe  d.  Terry  v.  Collier,  11  East,  377  ; 
Co.  Lit.  290  b,  n.  249,  §  6 ;  1  Eq.  Cas.  Abr.  382  ;  Harton  v.  Harton.  7  T.  R.  653  ; 
Jones  V.  Bush,  4  Harring.  1 ;  Ayer  v.  Ayer,  16  Pick.  327,  330  ;  Doe  d.  Leicester  v. 
Biggs,  2  Taunt.  109.  But  it  has  been  held  that  where  by  statute  a  married  woman 
is  allowed  to  hold  property  as  her  own  and  free  from  her  husband's  control,  such  a 
use  is  executed  by  the  statute.  Sutton  v.  Aiken,  62  Ga.  733  ;  Banks  v.  Sloat,  69  Ga. 
330.  But  if  the  married  woman  does  not  have  absolute  right  of  disposal,  the  trust 
remains.     Richardson  v.  Stodder,  100  Mass.  528. 

5  2  Crabb,  Real  Prop.  509  ;  Wms.  Real  Prop.  134  ;  1  Eq.  Cas.  Abr.  383  ;  Hill, 
Trust.  232 ;  2  Sharsw.  Bl.  Com.  335,  n. ;  Willis,  Trust.  21  ;  Doe  d.  Gratrex  v. 
Homfray,  6  Ad.  &  E.  206.     See  post,  §  1412. 


416  TRUSTS. 

or  enforced.  But  this  rule,  though  a  general  one,  will  be  found 
hereafter  to  be  essentially  qualified  in  respect  to  what  are 
called  charitable  trusts,  which  are  regulated  by  the  statute  of 
Elizabeth.i 

§  140G.  When  the  Statute  failed  to  execute  the  Seisin  in 
the  Use.  —  [We  have  seen  that  the  statute  failed  to  destroy  the 
equitable  estate  where  a  use  was  limited  on  a  use,  where  an 
active  duty  with  respect  to  the  estate  was  cast  upon  the  feoffee 
to  uses,  where  the  cestui  que  use  was  a  married  woman,  and 
where  the  estate  conveyed  to  uses  was  a  chattel  interest  un- 
supported by  a  seisin.2]  Another  class  of  uses  which  were 
held  not  to  come  within  the  statute,  and  were  consequently 
seized  upon  by  courts  of  equity  in  building  up  the  system  of 
trusts,  were  those  which  were  implied.  Thus  where  land  was 
purchased  in  the  name  of  one,  but  the  consideration  was  paid 
by  another,  which  was  explained  in  a  former  chapter.^  And  to 
these  were  soon  added  cases  where  the  legal  title  to  land  was 
in  one  by  fraud  or  accident,  and  the  equitable  claim  to  the 
samp  was  in  another ;  as  where,  for  instance,  one,  who  had 
been  intrusted  with  money  by  another  to  purchase  for  him  an 
estate,  should  take  the  deed  in  his  own  name.* 

§  1407.  Tyrrei's  Case.  —  One  case  deserves  an  extended 
notice  from  tlie  important  part  it  had  in  establishing  the  sys- 
tem of  trusts.  It  arose  about  twenty  years  after  the  act  of  27 
Hen.  VIII.  under  these  circumstances,  and  was  decided  in  a 
court  of  common  law.^  Jane  Tyrrel,  for  a  valuable  considera- 
tion paid  by  her  son  and  heir,  bargained  and  sold  her  land  to 
him,  habendum  to  her  use  during  life,  and  after  her  death  to 
the  use  of  himself  and  the  heirs  of  his  body,  and  for  default  of 
such  heirs,  to  the  use  of  his  own  right  heirs.  As  this  con- 
veyance was  by  bargain  and  sale,  it  could  only  take  efTect,  in 
tlie  first  place,  by  raising  a  use  in  favor  of  the  son  to  which 
the  law  united  the  mother's  seisin,  and  executed  the  use  in  the 
son,  Xow,  to  give  effect  to  these  several  estates  by  the  statute 
of   uses,  the  operation  must  have  been  this :  when  the  seisin 

1  Levyy.  Levj',  33  N.  Y.  lOi,  107,  122. 

2  Ante,  §§  1404,  1405. 
8  Ante,  §  1332. 

*  1  Spence,  Eii.  Jur.  452,  467. 
^  Tyrrei's  case,  Dyer,  155. 


THEIR   NATURE,    DURATION,    QUALITIES,    AND    INCIDENTS.      417 

had  reached  the  son,  there  was  a  use  then  waiting  in  J.  T., 
and  the  seisin  in  the  son  must  pass  back  again  to  J.  T.  to  be 
executed  in  her  for  life.  And  at  her  death  a  use  was  then  m 
esse  in  the  son,  wliich  would  draw  the  seisin  and  execute  the 
use  in  him.  But  the  court  repudiated  the  idea  of  the  seisin 
shifting  about  in  this  manner;  for  if,  when  once  executed,  it 
could  pass  to  a  third  person,  it  might  to  fifty  in  succession  ; 
and  besides,  the  statute  speaks  of  being  "  seised  of  lands  and 
tenements  "  to  the  use  of  another.  In  an  opinion  of  three  lines, 
they  held  that,  the  use  being  executed  in  the  son,  the  uses  in 
the  hahendiun,  so  far  as  they  could  be  affected  by  the  statute, 
were  void,  use  ne  j^oit  estre  engendre  de  use,  etc.  And  the 
doctrine  has  become  an  elementary  one  in  this  country,  where 
it  has  not  been  changed  by  statute.  Thus  it  is  assumed  that  a 
use  limited  upon  a  use  is  not  executed  or  affected  by  the 
statute  of  uses.  The  second  is  valid  as  a  trust.^  "  By  this 
means,  a  statute  made  upon  great  consideration,  introduced  in 
a  solemn  and  pompous  manner,  by  this  strict  construction,  has 
had  no  other  effect  than  to  add,  at  most,  three  words  to  a 
conveyance."  ^ 

§  1408.  How  far  Trusts  revocable.  —  As  trusts  are  more' 
commonly  than  otherwise  voluntary  dispositions  of  estates  by 
those  creating  them,  questions  have  arisen  whether  and  how 
far  it  is  competent  for  one  who  grants  an  estate  in  trust  to 
revoke  the  grant,  or  essentially  change  the  objects,  purposes,, 
or  details  of  the  trust  as  declared  thereby.  And  to  this  extent 
the  question  seems  to  have  been  settled.  If  the  trust  is  created 
for  the  benefit  of  the  grantor  as  well  as  the  cestui  que  trust,  as, 
for  instance,  by  a  debtor  for  the  benefit  of  his  creditors,  and, 
before  any  of  his  creditors  have  assented  or  become  parties  to 
the  conveyance,  he  convey  the  estate  upon  other  and  different 
trusts,  it  would  be  too  late  for  the  creditors  under  the  first  deed 
to  interpose  to  prevent  the  execution  of  the  new  trusts.^  But 
if  a  deed  of  trust  be  actually  executed  and  delivered  to  the 
trustee,  creating  a  trust  in  favor  of  another,  as,  for  example, 

1  Croxall  V.  Shererd,  5  Wall.  282.     See  Wyman  v.  Brown,  50  Me.  l.')?. 

2  Hopkins  v.  Hopkins,  1  Atk.  591.  In  Tyrrel's  case  the  son  became  trustee  of 
J.  T.  for  life.  1  Prest.  Abst.  142.  But  by  statute  now  in  many  States  a  use  upon 
a  use  gives  a  legal  estate  to  the  last  cestui  que  use. 

8  "Wallwyn  v.  Coutts,  3  Meriv.  707  ;  Bill  v.  Cureton,  2  Mylne  &  Keeue,  511. 
VOL.  n.  —  27 


418  TRUSTS. 

for  a  future  husband  or  wife,  or  for  children  to  be  born,  it 
would  hot  be  competent  for  the  grantor  or  settlor  to  revoke 
such  trust,  nor  would  a  court  of  equity  require  it  to  be  done, 
even  though  such  settlement  might  as  to  creditors  be  void 
under  the  statute  of  Elizabeth.  Thus,  where  A,  being  in  debt 
and  unmarried,  conveyed  his  estate  to  B  in  trust,  to  pay  and 
apply  the  income  for  the  benefit  of  the  grantor  during  his  life, 
and  after  his  death  for  the  benefit  of  his  children  if  he  left  any, 
he  then  being  unmarried,  and  he  subsequently  married  and 
undertook  to  revoke  this  trust,  and  applied  to  the  court  to  aid 
him  in  so  doing,  the  court  held  it  to  be  a  trust  by  which  he  was 
bound,  and  dismissed  his  bill.^  And  a  like  doctrine,  that  such 
a  trust  is  irrevocable,  was  established  in  respect  to  stock  trans- 
ferred to  trustees  by  a  single  woman,  in  trust  for  herself  till 
married,  then  in  trust  for  her  husband  if  she  married,  and  after 
his  death  in  trust  for  her  children,  if  any.^  But  in  a  case  in 
New  Jersey,  where  there  was  a  voluntary  deed  of  trust  exe- 
cuted under  the  supposition  tliat  it  was  revocable  and  intended 
to  be  so,  but  no  such  clause  was  inserted  in  the  deed,  the  court, 
under  the  circumstances  that  it  was  unadvised  and  improvi- 
dent, set  the  deed  aside,  although  the  infant  children  of  the 
grantor  were  beneficiaries  under  the  deed.  And  they  cite 
several  modern  cases  from  the  English  reports,  where  the  old 
rule  on  the  subject  is  said  to  have  been  relaxed.^  But  in  a 
later  case  in  Connecticut,  where  one  voluntarily  deposited 
money  in  trust  for  an  object  of  his  bounty,  it  was  held  to  be 
irrevocable.*  So  where  a  husband  and  father,  who  was  intem- 
perate in  his  habits,  in  order  to  guard  against  these,  made  a 
trust-deed,  1st,  to  pay  his  debts;  2d,  to  pay  him  a  certain  sum 
annually  ;  3d,  to  pay  the  surplus  income  to  his  Avife  ;  4th,  after 
his  death  to  sell  the  estate,  and  pay  the  proceeds  to  persons 
named.  Having  reformed,  he  applied  to  the  court  to  set  aside 
the  deed ;  but  they  held  it  was  irrevocable.^  And  it  may  be 
said  to  be  now  established  as  a  general  rule,  except  where  the 

1  Petre  v.  Espinasse,  2  Mylne  &  Keene,  496. 

-  Bill  V.  Cureton,  2  Mylne  &  Keene,  503..    See  also  Story,  Eq.  §  371. 
3  Garn.sey  v.  Mundy,  24  N.  J.  Eq.  243.     Among  the  cases  cited  were  Hall  v. 
Hall,  L.  R.  8  Ch.  App.  430  ;  Forshaw  v.  Welsby,  30  Beav.  243. 
*  Minor  v.  Rogers,  40  Conn.  512. 
^  Patter's  Appeal,  59  Penn.  St.  9. 


THEIR   NATURE,   DURATION,   QUALITIES,   AND    INCIDENTS.      419 

rights  of  creditors  are  concerned,  that  after  a  complete  legal 
title  under  a  trust  has  vested  in  the  trustee,  the  trust  cannot 
be  revoked  by  the  grantor,^  unless  he  has  reserved  such  a 
power,2  Qj.  omitted  it  by  mistake,^  or  unless  a  court  of  equity, 
looking  at  the  provisions  of  the  trust,  can  say  that  such  an 
omission  is  unconscionable  or  improvident,  which  they  are 
particularly  likely  to  do  in  case  of  trusts  created  without  con- 
sideration by  married  women,  or  minors.*  Although  the  trust 
may  be  irrevocable  as  to  the  grantor,  yet  whenever  all  other 
parties  interested  in  the  trust,  both  directly  and  remotely  or 
contingently,  trustee  and  cestui,  agree  to  end  the  trust,  a  court 
of  equity  may  decree  a  distribution  of  the  trust  property, 
although  the  trust  may  not  have  reached  the  limit  of  time  set 
by  the  settlor,  nor  have  accomplished  all  the  objects  set  forth  in 
its  provisions,'^  or  a  new  trust  may  be  substituted  by  agreement 
of  all  parties  interested  in  place  of  the  original  trust.^ 

1  Fellows's  App.,  93  Penn.  St.  470;  Hill,  Trustees,  *82. 

2  Gaither  v.  Williams,  57  Md.  625. 

2  Aylswoith  V.  Whitcomb,  12  R.  I.  298.  And  it  is  there  held  that  if  no  inten- 
tion appears  on  the  part  of  the  grantor  to  create  an  irrevocable  trust,  a  court 
of  equity  will  consider  the  omission  in  itself  a  mistake,  and  will  remedy  the  omis- 
sion by  holding  the  deed  revocable.     Ibid. 

*  Gibbes  v.  N.  York  Life  Ins.  &  Tr.  Co.,  67  How,  Pr.  207. 

5  Culbertson's  App.,  76  Penn.  St.  145  ;  Perry,  Trusts,  §§  274,  386,  920.  But 
it  is  held  in  Pennsylvania  that  a  married  woman  cannot  consent  to  the  termination 
of  a  trust  created  for  her  benefit.     Twining's  App.,  97  Penn.  St.  36. 

*  Sherburne  v.  Morse,  132  Mass.  469. 


420  TRUSTS. 


CHAPTER  LVIII. 

TRUSTS  —  CLASSIFICATION   OF  TRUSTS. 

§  1409.  Trusts  simple  or  special. 

1410.  Simple  trusts. 

1411.  Distinction  between  executed  uses  and  trusts. 

1412.  Active  trusts. 

1413.  Trusts  for  the  protection  of  mamed  women. 

1414.  Liberal  construction  in  favor  of  uses  to  married  women. 

1415.  Cases  implying  active  trusts. 

1416.  Active  trusts  changing  to  passive. 

1417.  Special  trusts  distinguished  from  powers. 

1418.  Implied  trusts. 

141 9-.  Trust  never  implied  where  one  expressed. 

1420.  Resulting  trusts  distinguished  from  constructive. 

1421.  Resulting  trusts  and  resulting  uses  differentiated. 

1422.  Classification  of  resulting  trusts. 

1423.  Instances  of  resulting  trusts. 

1424.  Resulting  trusts  founded  on  rebuttable  presumption. 

1425.  Purchase  effected  with  wife's  money. 

1426.  Consideration  furnished  by  one,  title  taken  in  name  of  another. 

1427.  Parol  evidence  competent  to  rebut  presumption. 

1428.  Resulting  trust  may  be  established  by  parol. 

1429.  Statutory  restrictions  of  the  doctrine  of  resulting  trusts. 

1430.  Constructive  trusts. 

1431.  Ground  on  which  constructive  trusts  rest. 

1432.  Purchase  by  one  standing  in  fiduciary  relation. 

1433.  Trustee  may  buy  from  cestui  que  trust. 

1434.  Land  purchased  with  trust  funds. 

1435.  Purchase  of  trust  property  in  fraud  of  trust. 

1436.  Statute  of  frauds  no  defence  against  fraud. 

1437.  Devise  obtained  by  promise  to  hold  in  trust. 

1438.  Trusts  of  terms  for  years. 

1439.  Executory  and  executed  trusts. 

1440.  The  estate  of  the  trustee. 

1441.  The  interest  of  the  cestui  que  trust. 

1442.  Both  estates  governed  by  same  general  rules. 

1443.  Pule  in  Shelley's  ease. 

1444.  Rules  of  descent,  transmission,  etc. 

1445.  How  far  equitable  estates  are  liable  for  debts. 

1446.  May  the  donor  exempt  the  equitable  estate  from  liability  for  debts  ' 

1447.  Rule  against  perpetuities  applied. 

1448.  Statute  of  limitations  as  applied  to  express  trusts. 

1449.  Statute  of  limitations  —  Constructive  and  resulting  trusts. 


CLASSIFICATION    OP   TRUSTS.  421 

§  1450.  If  the  trustee  of  an  express  trust  repudiate. 

1451.  Trusts  not  subject  to  rules  growing  out  of  tenure. 

1452.  Receipt  of  profits  ecjuivalent  to  seisin. 

1453.  "  Heirs  "  in  limiting  estates  of  inheritance. 

1454.  Legal  estate  measured  by  the  equitable. 

1455.  Rules  for  determining  quantity  of  trustee's  estate. 

1456.  Equitable  estate  of  vendee. 

1457.  E(;[uitable  conversion  —  Personalty  treated  as  realty. 

1458.  Trusts  to  preserve  contingent  remainders. 

1459.  Dower  and  curtesy. 

§  1409.  Trusts  simple  or  special.  —  The  first  classification 
of  trusts  is  into  general,  simple  or  passive,  and  special  or 
active  trusts.^ 

§  1410.  Simple  Trusts.  —  A  simple  trust  is  one  where  prop- 
erty is  vested  in  one  upon  trust  for  another,  the  nature  of  the 
trust  not  being  expressed,  but  left  to  the  construction  of  the 
law.  The  legal  estate  merely  is  vested  in  the  trustee  :  the  cestui 
que  trust,  being  in  equity  entitled  to  the  rents  and  profits,  has 
power  to  dispose  of  the  lands,  and  to  call  upon  the  trustee  to 
execute  the  requisite  conveyances.^  For  the  reason,  therefore, 
already  stated  (§  1482),  if  a  grant  were  made  to  A  in  trust 
for  an  unincorporated  association,  incapable  of  taking  and  hold- 
ing lands,  the  grant  will  be  void  for  want  of  a  known  compe- 
tent cestui  que  trust.^  An  instance  of  this  class  of  trusts  is  a 
limitation  to  A  and  his  heirs  to  the  use  of  B  and  his  heirs,  to 
the  use  of  or  in  trust  for  C  and  his  heirs.  B  takes  the  legal 
estate,  but  becomes  trustee  for  C.  Among  the  trusts  included 
under  this  class  were  those  heretofore  in  use  to  preserve  con- 
tingent remainders,  which  will  be  explained  hereafter.* 

§  1411.  Distinction  bet'wreen  Executed  Uses  and  Trusts.  — 
But  it  is  often  difficult  to  determine,  in  a  given  case,  whether 
the  estate  limited  is  a  legal  or  equitable  one,  as  may  be  illus- 
trated by  the  following  adjudged  cases.  A  testator  devised 
unto  and  to  the  use  of  A,  to  the  use  of  or  in  trust  for  B.  It 
was  held,  that  inasmuch  as  here  was  a  use  in  A,  there  could 
not  be  a  second  use  in  B,  and  tlierefore  that  A  took  the  legal 

1  As  to  charitable  trusts,  see  post,  §  4439. 

2  Lewin,  Trusts  (2d  ed.),  23;  Tud.  Lead.  Gas.  274  ;  Wms.  Real  Prop.  135  ; 
2  Flint.  Real  Prop.  786. 

3  Germ.  Land  Assoc,  v.  Scholler,  10  Minn.  331. 
*  See  post,  §  1458. 


422  TRUSTS. 

estate,  and  B  an  equitable  one  only.^  But  where  the  testator 
devised  to  A  and  his  heirs  to  the  use  of  B  and  his  heirs,  or 
in  trust  for  B  and  his  heirs,  to  receive  the  rents,  etc.,  as  it 
made  no  difference  whether  the  word  "  use  "  or  "  trust "  were 
used,2  it  was  held  that  the  legal  estate  was  in  B  by  force  of 
the  statute.^  The  question  in  those  cases  is.  In  whom  is  the 
first  use,  or  to  whom  is  it  limited?  Ihus,  if  an  estate  be 
limited  to  A  and  his  heirs,  to  the  use  of  A  and  his  heirs,  in 
trust  for  or  to  the  use  of  B  and  his  heirs,  the  first  use  being 
to  A,  the  grantee,  and  there  being  a  use  or  benefit  over  in 
favor  of  B,  A  is  held  to  be  a  trustee,  and  B  the  cestui  que 
trust.  But  if  it  had  been  to  A  and  his  heirs,  to  the  use  or  in 
trust  for  B  and  his  heirs,  A  would,  in  fact,  have  taken  nothing, 
unless  he  was,  by  the  terms  of  his  deed,  charged  with  some 
certain  duty  in  regard  to  the  estate,  which  required  him  to 
retain  the  seisin.*  The  legal  estate,  in  such  cases,  vests  in  him 
to  whom,  by  the  words  of  the  instrument,  the  use  is  first  lim- 
ited.^ Though  where  a  devise  has  been  made  to  A  and  his 
heirs,  to  the  use  of  B  and  his  heirs,  whether  or  not  the  estate 
is  to  be  executed  in  B  may  depend  upon  a  construction  of  the 
whole  will  as  to  the  intent  of  the  testator  in  that  respect,^ 

§  1412.  Active  Trusts.  —  The  question  whether  the  person 
named  as  trustee  shall  be  construed  to  have  the  legal  estate,  or 
it  shall  be  transmitted  through  him  to  the  cestui  que  trust,  is 
often  determined  by  the  fact  that  he  is  charged  with  duties  in 
respect  to  the  property  which  require  that  the  legal  estate  should 
be  vested  in  him ;  as,  for  instance,  to  dispose  of  the  property, 

1  Wms.  Real  Prop.  134,  where  the  illustration  is  a  feoffment  instead  of  a  devise, 
the  same  rule  being  applicable  to  each.  Moore  v.  Shultz,  13  Penn.  St.  98  ;  2  Jarm. 
Wills,  198  ;  Tud.  Lead.  Cas.  268  ;  Doe  d.  Lloyd  v.  Passingham,  6  Barn.  &  C.  305  ; 
1  Sugd.  Pow.  (3d  Am.  ed.)  168-171  ;  2  Smith,  Lead.  Cas.  (5th  Am.  ed.)  454. 

2  Doe  d.  Terry  v.  Collier,  11  East,  377  ;  2  Jarm.  Wills,  199  ;  Kay  v.  Seates,  37 
Penn.  St.  37  ;  Webster  v.  Cooper,  U  How.  488. 

3  Broughton  v.  Langley,  Ld.  Raym.  873;  Right  v.  Smith,  12  East,  455  ;  Doe  d. 
Noble  V.  Bolton,  11  Ad.  &  E.  188  ;  Ramsay  v.  Marsh,  2  M'Cord,  252;  Welch  v. 
Allen,  21  Wend.  147  ;  Jenney  ?'.  Laurens,  1  Spear,  356. 

*  Price  V.  Sisson,  13  N.  J.  E(^.  173,  174  ;  2  Bl.  Com.  336  ;  Hill,  Trust.  230,  235  ; 
Hayes  v.  Tabor,  41  N.  H.  521,  525,  526;  Turley  v.  Massengill,  7  Lea,  353;  Bur- 
nett V.  Burnett,  17  S.  C.  545. 

5  Att'y-Gen.  v.  Scott,  Cas.  temp.  Talb.  138  ;  Croxall  i'.  Shererd,  5  Wnll.  282. 

^  Gregory  v.  Henderson,  4  Taunt.  775,  by  Gibbs,  C.  J.;  Harton  v.  Harton, 
7  T.  R.  650,  by  Lord  Kenyon,  C.  J. 


CLASSIFICATION    OF   TRUSTS.  423 

or  pay  the  rents  over  to  the  cestui  que  trust,  or  apply  them  in 
the  maintenance  of  the  cestui  que  trust,^  or  to  manage  the 
estate  as  the  trustee  should  think  most  for  the  interest  of  the 
cestui  que  trust,  and  the  like,''^  or  to  pay  the  rents  to  a  married 
woman,  or  to  suffer  her  to  receive  the  rents,  or  pay  annuities 
out  of  the  rents,  etc."  And  thou^^h  it  was,  for  a  while,  main- 
tained as  law  in  Pennsylvania,  that  a  use  will  be  held  to  be 
executed  in  a  cestui  que  trust,  where  he  is  to  have  the  beneficial 
interest  in  the  estate  except  in  cases  of  femes  covert  and  others 
under  a  disability,^  it  is  now  established,  that  if  a  trust  is 
created,  in  which  the  trustee  has  an  active  duty  to  perform,  it 
does  not  become  an  executed  use,  but  is  properly  a  trust,  and 
vests  in  the  trustee ;  thus  in  effect  overruling,  to  this  extent, 
the  cases  of  Kuhn  v.  Newman  and  Kay  v.  Scates,  cited 
ante.^ 

1  2  Jarm.  Wills,  198  ;  Posey  v.  Cook,  1  Hill  (S.  C),  413  ;  Moi-ton  v.  Barrett, 
22  Me.  257  ;  Norton  v.  Leonard,  12  Pick.  152,  158;  Newhall  y.  Wheeler,  7  Mass. 
189  ;  Cooper  v.  Cooper,  26  N.  J.  Eq.  121  ;  Schley  v.  Lyon,  6  Ga.  530  ;  Hooberry  v. 
Harding,  10  Lea,  392  ;  1  Prest.  Est.  185  ;  Co.  Lit.  290  b,  n.  249,  §  6;  Tud.  Lead. 
Cas.  268,  269  :  Plenty  v.  West,  6  C.  B.  201  ;  1  Cruise,  Dig.  385 ;  Doe  d.  Gratre.\  v. 
Homfray,  6  Ad.  &  E.  206  ;  Doe  d.  Leicester  v.  Biggs,  2  Taunt.  109. 

2  Bass  V.  Scott,  2  Leigh,  356  ;  Exeter  New  Par.  v.  Odiorne,  1  N.  H.  232. 

3  2  Flint.  Keal  Prop.  768  ;  2  Jarm.  Wills,  204  ;  1  Spence,  Eq.  Jur.  466  ;  Pullen 
V.  Rianhard,  1  Whart.  514,  520  ;  Lancaster  v.  Dolan,  1  Rawle,  231  ;  Nevil  v. 
Saunders,  1  Vern.  415  ;  Jones  v.  Say  and  Seal,  1  Eq.  Cas.  Abr.  383  ;  Hartou  v. 
Harton,  supra. 

*  Kuhn  V.  Newman,  26  Penn.  St.  227  ;  Kay  v.  Scates,  37  Penn.  St.  36. 

6  Barnett's  App.,  46  Penn.  St.  398,  per  Read,  J.,  who  cites  in  support  of  his 
doctrine  Cleveland  v.  Hallett,  6  Gush.  403  ;  Fay  v.  Taft,  12  Cush.  448 ;  Birlet's 
Est.,  32  L.  J.  Ch.  439 ;  Pullen  v.  Rianhard,  1  Whart.  521 ;  Smithwick  v.  Jordan, 
15  Mass.  113.  The  decisions  in  the  cases  of  Kiihn  v.  Newman  and  Kay  v.  Scates, 
supra,  were  influenced  by  the  hostility  of  the  Pennsylvania  courts  to  trusts,  —  a 
feeling  which  has  since  been  declared  to  have  passed  away.  Snyder's  Ajip.,  92 
Penn.  St.  507.  And  Barnett's  App.,  supra,  is  spoken  of  in  a  later  case  ( Larp's 
Ajip.,  75  Penn.  St.  119)  as  a  return  to  the  former  doctrine  of  trusts,  the  court  say- 
ing, in  addition,  that  since  that  time  —  i.  e  ,  the  decision  of  Barnett's  case —  it  has 
been  their  endeavor  to  maintain  trusts  upon  their  true  foundation,  as  a  means  of 
preserving  the  dominion  of  the  donor  over  his  own  property  for  his  reasonable 
purposes,  unless  where  a  clear  public  policy  strikes  down  the  trust  as  no  longer 
useful  or  as  an  unnecessary  clog  to  the  title.  And  the  later  cases  are  to  the  same 
eflfect.  Earp's  App.,  75  Penn.  St.  119  ;  Ashhurst's  App.,  id.  464  ;  Osborne  v.  Soley, 
81*  Penn.  St.  312  ;  Briggs  v.  Davis,  id.  470  ;  Williams'  Est.,  13  Phil.  325.  A  trust 
to  collect  rents,  income,  and  profits,  pay  charges,  taxes,  and  repairs,  and  pay  the 
net  income  to  a  life-tenant,  is  an  active  trust.  Livesey's  App.,  106  Penn.  St.  201. 
If  the  trust  is  to  do  as  above  and  after  the  death  of  the  life-tenant,  to  preserve  the 


424  TRUSTS. 

§  1413.    Trusts  for  the  Protection  of  Married  Women,  as  when 

land  is  given  to  A  for  the  sole  use  and  benefit  of  B,  a  married 
woman,  are  regarded  as  active  trusts,  although  no  active  duty 
is  imposed  on  the  trustee,  and  he  is  merely  to  i)ermit  the 
woman  to  receive  the  rents  and  profits.  A  court  of  equity  con- 
siders it  a  sufficient  object  to  keep  the  estate  of  the  wife  free 
from  the  interference  and  control  of  the  husband.^  The  dura- 
tion as  well  as  the  character  of  such  a  trust  is  determined 
by  the  coverture,  the  trust  arising  upon  coverture  and  extend- 
ing throughout  the  coverture.^  The  woman  to  whose  use  the 
estate  is  given  must  be  either  married  or  in  contemplation  of 
marriage  at  the  time  the  trust  is  created.  If  she  is  not,  the 
statute  executes  the  use  in  her,  and  her  subsequent  marriage 
does  not  raise  a  trust.^  And  it  is  held  in  Pennsylvania  that 
the  woman  must  be  either  married  or  in  contemplation  of  mar- 
riage at  the  time  the  will  is  executed,  or  the  trust  will  be 
void.^  Upon  the  death  of  the  husband  the  trust  terminates, 
and  the  legal  estate  is  then  executed  in  the  wife  by  the  statute 
of  uses.  The  trust,^  being  once  so  terminated,  does  not  revive 
upon  a  second  marriage.^  [This  was  the  former  English  rule 
in  all  cases,  and  it  is  now  the  settled  law  in  Pennsylvania ; 
but  at  present,  in  England,  and,  generally,  in  this  country, 
"  whether  the  separate  use  shall  continue  through  several  mar- 

corpus  of  the  estate  and  pay  it  over  to  the  children  of  tlie  life-tenant  when  they 
reach  tlie  age  of  twenty-one,  or  if  there  are  no  children,  to  pay  it  over  on  the  death 
of  the  life-tenant  to  certain  charities,  it  is  an  active  trust.  Ibid.  Trusts  to  collect 
rents,  etc.,  and  preserve  the  corpus  of  the  estate  for  a  remainder,  are  active. 
Ibid.;  Forcey's  App.,  106  Penn.  St.  508.  See  also  Carney  v.  Byron,  19  R.  I.  283  ; 
s.  c.  36  Atl.  Rep.  5.  Where,  however,  the  trust  is  only  to  permit  the  cestuis  to 
receive  the  rents  and  profits,  it  is  passive,  and  executed  by  the  statute.  Warner  v. 
Sprigg,  62  JId.  14. 

1  Perry,  Trusts,  §  310  ;  Horton  v.  Horton,  7  T.  R.  652. 

2  Steacy  v.  Rice,  27  Penn.  St.  75  ;  Bush's  App.,  33  Penn.  St.  85  ;  Gamble's 
Est.,  13  Phila.  198  ;  Hartley's  Est.,  Ibid.  392  ;  Lines  v.  Darden,  5  Fla.  78  ;  Ayer  r. 
Ayer,  16  Pick.  327  ;  Richardson  v.  Stodder,  100  Mass.  528. 

3  Ncale's  App.,  104  Penn.  St.  214;  Phil.  Safe  Dep.  &  Ins.  Co.'s  App.,  93 
Penn.  St.  209;  Snyder's  App.,  92  Penn.  St.  504;  McBride  i;.  Smith,  54  Penn. 
St.  250. 

4  Neale's  App.,  104  Penn.  St.  214. 

6  Richardson  v.  Stodder,  100  Mass.  530  ;  Mosely  v.  Roberts,  51  Mo.  282 ; 
Megarglee  v.  Naglee,  64  Penn.  St.  216. 

6  Freyvogle  v.  Hughes,  56  Penn.  St.  228;  Rea  v.  Cassel,  13  Phila.  159  ;  Wells 
V.  McCall,  64  Penn.  St.  207. 


CLASSIFICATION    OF   TRUSTS.  425 

riages  is  wholly  a  matter  of  intention."  "If  the  property  is 
clearly  settled  to  the  separate  use  of  a  woman,  such  separate 
use  will  attach  so  often  as  she  may  be  married."  ^]  Where  a 
feme  covert  is  entitled  to  hold  real  estate  as  if  she  were  sole,  a 
trust  solely  for  her  protection  during  coverture  would  find  no 
reason  for  its  existence  ;  and  it  has  been  held  that  in  such  a 
case  the  title  to  the  land  vests  at  once  in  the  cestui,  provided 
the  trust  is  a  dry  trust,  and  there  is  no  remainder  to  protect.^ 
But  if  the  statute  which  enables  married  women  to  take  and 
hold  property  to  their  separate  use  does  not  give  them  an  ab- 
solute right  of  disposal  of  their  estate,  the  trust  remains  dur- 
ing coverture.^  Although  a  trust  for  the  benefit  of  a  woman 
may  be  bad,  on  account  of  her  not  being  married  or  in  contem- 
plation of  marriage,  yet  if  there  are  active  duties  imposed 
upon  the  trustees,  such  as  to  collect  and  receive  the  rents  and 
pay  them  over  to  the  cestui,  or  to  keep  the  corpus  of  the  estate 
intact  for  remainder-men,  the  trust  may  be  supported  on 
that  ground.* 

§  1414.  Liberal  Construction  in  Favor  of  Uses  to  Married 
"Women.  —  Though  the  proposition  may  be  regarded  as  an  al- 
most universal  one,  that  a  grant  or  devise  to  one  to  permit  a 
married  woman  to  receive  the  rents  for  her  separate  use  is  con- 
sidered as  creating  a  trust  in  her  favor,  and  not  an  executed 
use,  and  courts  are  always  liberal  in  construing  such  a  limita- 
tion a  trust,^  yet  it  may  be  controlled  by  the  language  of  the 
grant  or  devise.  Thus  where  the  conveyance  of  property  was 
to  A,  in  trust  for  B,  who  was  a  feme  covert,  "  with  power  to 
said  B  to  dispose  of  the  same  by  an  instrument  in  the  nature 
of  a  last  will,"  there  was  held  to  be  an  executed  use  in  B,  and 
not  an  existing  trust.^ 

§  1415.    Cases  implying   Active    Trusts.  —  To    these    may    be 

1  Perry,  Trusts,  §  653. 

2  Sutton  V.  Aiken,  62  Ga.  733  ;  Banks  v.  Sloat,  69  Ga.  330. 

8  Richardson  v.  Stodder,  100  Mass.  528.  As  to  the  limitation  which  will  create 
an  equitable  separate  estate  in  a  married  woman,  see  ante,  §  320. 

*  Ashhurst's  App.,  75  Penn.  St.  464;  Earp's  App.,  id.  119  ;  Ogden's  App.,  70 
Peun.  St.  336  ;  Yariiall's  App.,  id.  336;  Fry's  Est,  11  Phila.  305. 

5  Harton  v.  Harton,  7  T.  R.  650 ;  1  Cruise,  Dig.  385  ;  Nevil  v.  Saunders, 
1  Vern.  415  ;  Magniac  v.  Thompson,  1  Baldw.  C.  C.  344  ;  2  Flint.  Real  Prop.  796  ; 
Williman  v.  Holmes,  4  Rich.  Eq.  495. 

<5  Ware  v.  Richardson,  3  Md.  505. 


426  TRUSTS. 

added  cases  where  the  trustee  named  is  to  permit  the  beneficial 
owner  to  receive  the  7iet  rents  and  profits,  implying  that  some- 
thing is  to  be  paid  by  the  trustee  himself  out  of  these,  the 
balance  only  going  to  the  cestui  que  trust}  or  where  tlie  trustee 
is  to  sell  and  convert  real  estate  into  money ,'^  or  where  the  duty 
is  imposed  of  having  the  rents  and  profits  accumulate,  requir- 
ing care  and  diligence  on  the  part  of  the  person  named  as 
trustee.^ 

§  14:16.  Active  Trusts  changing  to  passive.  —  There  are,  more- 
over, some  trusts  which  partake  successively  of  the  character 
of  active  trusts,  in  respect  to  which  the  trustee  is  clothed  with 
the  legal  estate,  and  of  executed  uses  where  it  passes  to  the 
one  beneficially  intended  in  it,  according  to  the  nature  and 
terms  of  the  limitation.  Thus  it  may  be  incumbent  upon  the 
trustee  to  dispose  of  the  rents  in  a  particular  manner  during 
the  life  of  A  B,  and  then  the  trust  may  so  change  as  to  be 
executed  in  a  new  cestui  que  trusts  A  trust  of  this  character 
would  be  a  devise  to  trustees  and  their  heirs  to  receive  the 
rents  and  support  the  devisor's  son  till  he  was  twenty-one,  and 
then  over  to  him.  In  such  a  case  it  was  held  that  the  legal 
estate  vested  in  the  trustees  till  the  son  was  of  age  and  then 
was  executed  in  him.^  The  doctrine  applied  in  these  cases 
is,  that  although  the  limitation  of  the  estate  to  one  be  such  as 
would  be  executed  in  another  as  the  cestui  que  trust,  if  the 
trustee  named  was  to  be  merely  passive,  yet,  if  he  have  an 
active  duty  to  do  wliich  requires  him  to  hold  the  legal  estate 
for  a  term  of  time,  he  will  be  considered  as  seised  thereof  ac- 
cordingly, so  l(jng  as  it  shall  be  necessary,  and  it  will  then  be 
executed  in  the  cestui  que  trusty  upon  the  principle  that  trus- 

1  Tud.  Lead  Cas.  269. 

2  Cooper  «.  Whitney,  3  Hill  (N.  Y.),  95. 

3  2  Flint.  Real  Prop.  802. 

*  Co.  Lit.  290  6,  249,  §  6  ;  Ackland  v.  Lutley,  9  Ad.  &  E.  879  ;  Tud.  Lead.  Cas. 
270  ;  Blaker  v.  Anscombe,  1  Bos.  &  P.  N.  R.  25  ;  Robinson  v.  Grey,  9  East,  1. 

*  2  Flint.  Real  Prop.  802.  Another  instance  is  that  of  a  trust  for  a  married 
woman  during  coverture,  in  which  case  the  trustee  retains  the  legal  title  during 
coverture,  but  upon  the  death  of  the  husband  the  legal  title  vests  in  the  woman ; 
or  upon  her  death,  in  the  persons  next  entitled  to  the  estate.  Richardson  v.  Stodder, 
100  Mass.  528.  See  ante,  §  1412.  In  such  a  case  the  nature  of  the  estate  is  not 
changed,  but  its  character ;  if  the  limitation  is  of  a  fee,  it  is  an  equitable  fee  in 
the  wife  during  the  husband's  life,  and  after  his  death  a  legal  fee.      Ibid. 

6  Tud.   Lead.  Cas.  269,  270  ;  Doe  d.  Booth  i;.  Field,  2  Baru.  &  Ad.  564  ;  Doe 


CLASSIFICATION    OF   TRUSTS.  427 

tees  only  take  so  much  of  the  legal  estate  as  the  purposes  of 
the  trust  require. ^ 

§  1417.  Special  Trusts  distinguished  from  Powers.  —  Among 
special  trusts  is  the  common  one  of  a  devise  of  lands  to  one's 
executors  to  sell,  where  the  devisees  take  an  estate  in  trust  in 
the  same.  And  this  is  noticed  here  to  distinguish  it  from  the 
case  where  the  devise  is  that  the  executors  shall  sell,  or  that 
the  lands  shall  be  sold  by  them.  In  the  latter  case,  the  execu- 
tors take  no  estate,  but  merely  a  power  of  sale.  And  this  dis- 
tinction has  been  recognized  since  the  time  of  Henry  VI.^ 
Thus  where  trustees  were  by  will  authorized  to  sell,  etc.,  with 
full  power  to  execute  any  deed  or  deeds,  etc.,  it  was  held,  that 
the  legal  estate  did  not  vest  in  the  trustees.^  This  distinction 
is  sometimes  very  nice ;  but  it  may  be  laid  down,  pei'haps  as  a 
general  rule,  that  where  a  trust  is  not  expressly  created  by  a 
will,  and  the  duty  to  be  performed  may  be  sufl&ciently  accom- 
plished by  the  exercise  of  a  bare  power  or  authority,  a  bare 
power  or  authority  only  will  be  construed  to  be  created."* 

§  1418.  Implied  Trusts,  or  those  Created  by  operation  of 
law,  have  already  been  mentioned  as  existing  independently  of 
the  statute,  and  as  therefore  not  to  be  executed  in  the  cestuis 
que  trust  by  force  of  it.  Trusts  thus  created  are  distinguished 
as  implied^  resulting,  and  constructive;  though  it  may  be  re- 
marked in  passing,  that  courts  of  law  do  not  notice  resulting 
trusts.^  Nor  are  resulting  trusts  ever  executed  by  the  statute, 
or  united  with  the  legal  estate  so  as  to  attach  the  seisin  to 
them.     They  are  in  this  respect  excepted  out  of  the  statute.^ 

§  1419.  Trust  never  implied  -where  one  expressed.  —  It  should 
also  be  borne  in  mind,  that  the  law  never  implies  a  trust  where 
there  is  an  express  one,  such  as  is  declared  by  word  or  writing.^ 

(1.  Cadogan  v.  Ewart,  7  Ad.  &  E.  636;  1  Prest.  Abst.  143,  144;  Upliam  v.  Variiey, 
15  N.  H.  462  ;  Doe  d.  Woodcock  v.  Bartlirop,  5  Taunt.  382  ;  Adams  v.  Adams, 
6  Q.  B.  860. 

1  Barker  v.  Greenwood,  4  Mees.  &  W.  421  ;   Adams  v.  Adams,  6  Q.  B.  860. 

2  2  Jarm.  Wills,  Perk.  ed.  206  ;  Co.  Lit.  113  a;  Sugd,  Pow.  106;  1  GreenL 
Cruise,  Dig.  384,  note;  Fletch.  Trust.  13  ;  Howell  v.  Barnes,  Cro.  Car.  382. 

»  Fay  V.  Fay,  1  Gush.  93. 

*  Fletch.  Trust.  11. 

5  Thomson  v.  Peake,  7  Ricli.  353. 

6  Nightingale  v.  Hidden,  7  K.  I.  121. 

''  1  Spence,  Eq.  Jur.  496;  Denuison  v.  Goehring,  7  Penn.  St.  175;  Co.  Lit. 
290  b,  note  249,  §  8. 


428  TRUSTS, 

It  was  accordingly  held,  that  where  A,  without  any  considera- 
tion actually  paid,  made  a  deed  to  B,  no  trust  would  result  to 
the  grantor  if  a  consideration  was  acknowledged,  or  a  use  was 
limited  in  the  deed.^  It  is,  however,  competent  to  show  by 
proper  evidence  the  creation  of  an  express  trust  in  such  a  case. 
The  proof  must  not  be  by  parol,  for  such  a  case  is  within  the 
statute  of  frauds.^ 

§  1420.  Resulting  Trusts  distinguished  from  constructive.  — 
Implied  or  resulting  trusts  must  consequently  arise  from  the 
act  of  some  party  having  the  beneficial  ownership  of  the  prop- 
erty, while  all  other  trusts  which  are  not  express  are  con- 
sidered as  constructive,  and  are,  as  a  general  rule,  imposed  in 
invitum  upon  the  person  who  is  held  to  be  a  trustee.^  It  is 
hardly  necessary  to  add,  what  must  be  a  natural  inference 
from  the  preceding  propositions,  that  no  estate  can  arise  by 
implication  to  defeat  an  estate  which  is  expressly  limited  in 
terms.^  Among  the  cases  illustrating  what  is  meant  by  an  im- 
plied trust  is  that  of  a  testator  directing  his  estate  to  be  sold 
for  the  payment  of  his  debts,  or  charging  it  with  such  payment, 
and  the  like.  In  such  a  case,  the  law  fastens  a  trust  upon  the 
estate  ;  and  whoever  takes  it  by  descent  or  devise  is  bound  as 
trustee  to  do  whatever  is  necessary  to  accomplish  the  purposes 
declared  by  the  testator.^  Another  case  would  be  the  familiar 
one  of  a  sale  of  land^  where  the  vendor,  until  the  deed  is  exe- 
cuted and  delivered,  becomes  the  trustee  of  the  purchaser,^ 
though  the  latter  cannot  exercise  the  rights  of  a  cestui  que  trust 
until  he  shall  have  paid  the  whole  agreed  purchase-money.'' 
Nor,  since  the  statute  of  frauds,  can  such  a  trust  be  regarded 
or  enforced,  unless  the  agreement  be  in  writing,  and  signed  by 
the  party  to  be  charged.^  But  where  a  father  completed  a  pur- 
chase made  by  his  son  by  paying  the  balance  of  the  purchase- 

1  Seepos<,  §  1426. 

2  Osborn  v.  Osborn,  29  N.  J.  Eq.  385. 

3  1  Spence,  Eq.  Jur.  509. 
*  1  Prest.  Est.  191. 

s  1  Spence,  Eq.  Jur.  509  ;  Lewin,  Trusts  (2d  ed.),  66. 

6  "Willis,  Trust.  56  ;  Jackson  d.  Seclye  v.  Morse,  16  Johns.  197  ;  Bowie  v.  Bern,', 
3  Md.  Ch.  359. 

'  Wms.  Real  Prop.  137  ;  Connor  v.  Lewis,  16  Me.  268  ;  1  Spence,  Eq.  Jur.  509  ; 
2  Flint.  Real  Prop.  775. 

8  2  Flint.  Real  Prop.  800,  814  ;  Harris  v.  Barnett,  3  Gratt.  339. 


CLASSIFICATION    OF   TRUSTS.  429 

money,  and  took  a  deed  to  liimself,  he  was  held  thereby  to 
substitute  himself  as  trustee  in  place  of  the  vendor,  and  to  be 
chargeable  as  such  to  the  son.^ 

§  1421.  Resulting  Trusts  and  Resulting  Uses  differentiated.  — 
What  has  previously  been  said  in  respect  to  the  character  and 
creation  of  resulting  uses  ^  applies  equally  to  resulting  trusts  ^ 
with  one  exception,  where  equity  applies  a  more  liberal  rule  to 
raise  a  resulting  trust  than  it  did  to  raise  a  use.  Thus,  in  the 
case  of  a  bargain  and  sale,  the  estate  would  pass  to  the  bar- 
gainee if  the  consideration  of  a  farthing  were  paid,  inasmuch 
as  the  use  thereby  raised  in  his  favor  is  executed  in  him ;  in 
such  a  case,  however,  the  consideration  not  being  anything  sub- 
stantial, equity  would  interpose  and  hold  the  bargainee,  though 
the  owner  of  the  legal  estate,  as  a  trustee  of  the  bargainor, 
and  would  compel  him  to  reconvcy  the  estate  to  the  bargainor.'^ 
To  create  a  resulting  trust,  the  money  of  the  cestui  que  trust 
must  be  used  in  purchasing  the  estate  in  which  the  trust  is 
claimed.^  But  any  substantial  consideration  paid  by  the  gran- 
tee would  be  sufficient  to  repel  the  presumption  of  a  resulting 
trust.s 

§  1422.  Classification  of  Resulting  Trusts.  —  Lord  Hardwicke 
mentions  three  classes  of  resulting  trusts,  or  such  as  arise  by 
implication  of  law,  and  do  not  come  within  the  statute  of 
frauds,  which  requires  trusts  to  be  manifested  in  writing  :  1st, 
where  the  estate  is  purchased  in  the  name  of  one,  but  the 
money  is  paid  by  another  ;  2d,  where  the  trust  is  declared  in 
part  only,  the  residue  remaining  undisposed  of ;  and  3d,  in 
certain  cases  of  fraud.  And  parol  evidence  is  competent  to 
show  collateral  facts  from  which  a  trust  may  be  held  to  result." 

§  1423.  Instances  of  Resulting  Trusts.  —  If  there  be  a  devise 
or  grant  of  an  estate  in  trust,  the  income  thereof  to  be  applied 
to  certain  purposes,  and  there  proves  to  be  a  surplus   unex- 

1  Magee  v.  Magee,  1  Penn.  St.  405. 

2  Ante,  §§  1335,  1385  et  seq. 

3  1  Spence,  Eq.  Jur.  510  ;  Willis,  Trust.  57,  58. 

*  1  Spence,  Eq.  Jur.  467 ;  Willis,  Trust.  57,  note  ;  Hill,  Trust.  107 ;  ante, 
§  1387. 

6  Remington  v.  Campbell,  60  111.  516. 
«  Orton  V.  Ktiab,  3  Wis.  576. 

7  Lloyd  V.  Si)illet,  2  Atk.  148,  150  ;  1  Greenl.  Ev.  §  266  :  Trapnall  v.  Brown, 
19  Ark.  39;  Fleming  v.  McHale,  47  111.  282. 


430  TRUSTS. 

hausted  after  such  an  application,  the  devisee  or  grantee  will  be 
held  in  equity  as  trustee  thereof  under  a  resulting  trust,  for  the 
heir  of  the  devisor  or  of  the  grantor,  unless  it  is  expressly- 
given  to  the  trustee.!  So  where  land  was  devised  to  A  in  trust 
for  a  certain  church  so  long  as  it  continued,  upon  its  ceasing 
to  exist  it  was  held  that  the  trustee  thereafter  held  it  by  a 
resulting  trust  for  the  benefit  of  the  testator's  heirs.^  So 
where  there  is  a  devise  of  the  income  of  an  estate  to  one  when 
he  shall  be  twenty-one  years  of  age,  the  intermediate  income 
will  result  to  the  heir  of  the  devisor.^  So  if  a  conveyance  be 
to  one  in  trust  for  such  trusts  as  the  grantor  shall  appoint,  and 
he  fails  to  appoint  any,  or  appoints  for  only  a  part  of  the  estate, 
a  trust  will  result  to  the  grantor  of  the  income  of  such  estate, 
in  whole  or  in  part.*  It  may,  therefore,  be  laid  down  as  a 
general  proposition,  that  it  is  not  necessary,  in  order  to  create 
a  trust  estate,  that  a  cestui  que  trust  should  be  named  who  is 
in  being ;  and  in  the  case  cited  it  was  held  to  be  sufficient,  if 
the  person  designated  as  the  cestui  que  trust  were  in  existence, 
and  could  be  distinguished  at  the  death  of  the  testator.  The 
trust  may  be  for  the  accumulation  of  the  rents  and  profits  of 
an  estate  for  the  benefit  of  one  who  may  either  come  into  exist- 
ence during  the  life  of  the  trustee,  or  be  in  existence  at  the 
time  of  his  death.^  Upon  a  like  principle,  if  the  purpose  for 
which  an  estate  is  directed  to  be  sold  fails,  the  power  of  sale  is 
in  equity  considered  as  revoked  as  to  all  that  remains  unsold, 
and  that  is  deemed  to  belong  to  the  grantor  or  the  heir  of  the 
devisor.^  And  if  the  estate  is  conveyed  for  a  particular  pur- 
pose or  on  particular  trusts,  which,  by  accident  or  otherwise, 
cannot  take  effect,  a  trust  will  result  in  favor  of  the  original 
owner.'^ 

1  2  Flint.  Real  Prop.  804. 

'^  Easterbrooks  v.  Tillinghast,  5  Gray,  17. 

8  2  Flint.  Keal  Prop.  804. 

*  1  Cruise,  Dig.  394,  396  ;  Lloyd  v.  Spillet,  2  Atk.  150  ;  Willis,  Trust.  58. 

6  Ashhurst  v.  Given,  5  Watts  &  S.  327. 

6  Willis,  Trust.  59;  2  Flint.  Real  Prop.  801. 

7  Willi,9,  Trust.  58  ;  1  Cruise,  Dig.  375.  Thus,  where  an  estate  is  given  in 
trust  for  certain  charities  which  are  too  indefinite  to  allow  the  trust  to  be  carried 
out,  and  the  trust  therefore  fails,  the  legal  title  remains  in  the  trustee,  but  a  trust 
results  to  the  heirs  of  the  grantor  or  testator.  Nichols  v.  Allen,  130  Mass.  212  ; 
Olliff  r.  Wells,  id.  221 ;  Robinson  v.  McDiarmid,  87  N.  C.  464. 


CLASSIFICATION   OF   TRUSTS,  431 

§  1424.  Resulting  Trusts  founded  on  Rebuttable  Presumption. 
—  In  cases  where  a  conveyance  is  made  by  one  to  his  wife  or 
child,  if  unadvanced,  no  trust  will  ordinarily  result  to  the  donor, 
though  none  be  declared  in  the  deed.^  So  the  purchase  of 
land  in  the  name  of  the  wife  or  child  raises  no  resulting  trust 
in  favor  of  the  purchaser.^  So  where  a  father  purchased  land 
in  his  children's  name,  and  had  a  deed  made  to  them,  the  law 
presumed  it  to  be  an  advancement,  and  not  a  trust  resulting  in 
his  favor.^  So  the  presumption  is  very  strong  that  no  trust  re- 
sults to  the  husband  in  a  question  between  a  wife  and  the  heirs 
of  the  husband.*     But  the  ordinary  inference  of  law  may  be 

1  1  Cruise,  Dig.  394,  402  ;  Kingdon  v.  Bridges,  2  Vern.  67  ;  Livingston  v.  Liv- 
ingston, 2  Johns.  Ch.  .537;  Douglass  v.  Brice,  4  Rich.  Eq.  322;  Welton  v.  Divine, 
20  Barb.  9  ;  Willis,  Trust.  61 ;  1  Spence,  Eq.  Jur.  511  ;  2  Flint.  Real  Prop.  813  ; 
Smith  V.  Strahan,  16  Tex.  314. 

2  Stevens  v.  Stevens,  70  Me.  92 ;  Wheeler  v.  Kidder,  105  Penn.  St.  270  ;  Scibold 
V.  Christman,  75  Mo.  308  ;  Edgerly  v.  Edgerly,  112  Mass.  175  ;  Cormerais  v. 
Wesselhoeft,  114  Mass.  550  ;  Bennett  v.  Camp,  54  Vt.  40;  Bent  v.  Bent,  44  Vt. 
555  ;  Milner  v.  Freeman,  40  Ark.  62;  James  v.  James,  41  Ark.  301  ;  Bartlettr. 
Bartlett,  13  Neb.  456  ;  s.  c.  15  Neh.  593  ;  Gray  v.  Gray,  13  Neb.  454. 

3  Cecil  ;;.  Beaver,  28  Iowa,  241;  McGinness  v.  Edgell,  39  Iowa,  419.  Such 
cases  turn  entirely  upon  the  intention  of  the  parties  to  the  transaction,  taken  in 
connection  with  the  rebuttable  presumption,  that  when  a  husband  buys  land  and 
takes  a  deed  in  the  name  of  his  wife,  or  a  parent  takes  a  deed  in  the  name  of  a 
child,  it  is  done  with  the  intention  of  making  a  gift  to  the  person  in  whose  name 
the  deed  is  taken.  Read  v.  Huff,  40  N.  J.  Eq.  229  ;  Stevens  v.  Stevens,  70  Me. 
92.  This  presumption  rests  upon  the  relationship  of  the  parties,  and  is  not  appli- 
cable to  other  cases,  and  is  rebutted  by  proof  of  the  actual  intention  of  the  paities 
as  shown  by  their  words  or  acts.  Buren  v.  Buren,  79  Mo.  538  ;  Seibold  v.  Christ- 
man,  75  Mo.  308  ;  Harden  i;.  Darwin,  66  Ala.  55 ;  Wormouth  v.  Johnson,  58 
Cal.  621  ;  Lorentz  v.  Lorentz,  14  W.  Va.  809.  The  proof  which  shall  rebut  the 
presumption  of  a  gift  or  settlement  to  the  wife  or  child  in  such  cases  must  be  of 
facts  antecedent  to  or  contemporaneous  with  the  purchase,  or  else  immediately 
afterwards,  so  as  to  be  in  fact  part  of  the  same  transaction.  Proof  of  facts  later 
than  that  will  not  rebut  the  presumption.  Read  v.  Huff,  40  N.  J.  Eq.  229.  If 
it  is  so  rebutted,  the  case  stands  upon  precisely  the  same  footing  as  any  case 
where  one  pays  the  purchase-money  for  a  deed  of  land,  and  the  deed  is  taken  in 
the  name  of  another,  thus  creating  a  resultant  trust  in  favor  of  the  one  who  pays 
the  money,  and  is  subject  to  the  rules  given  below  ;  see  posf,  §  1426  et  seq. 
Milner  v.  Freeman,  40  Ark.  62;  Taylor  v.  Mosely,  57  Miss.  471 ;  Flynt  v.  Hubbard, 
id.  544.  The  presumption  of  an  advancement  is  not  rebutted  by  proof  that  the 
husband  entered  into  possession  of  the  land,  improved  it,  paid  the  taxes,  and 
occupied  it  with  his  wife  as  a  homestead,  as  his  own  property,  and  that  when 
she  made  a  will  she  did  not  assume  to  dispose  of  it.  Maxwell  v.  Maxwell,  109 
111.  588. 

*  Sunderland  v.  Sunderland,  19  Iowa,  328.     See  also  Shaw  v.  Read,  47  Penn.  St. 


432  TRUSTS. 

rebutted  by  parol  evidence  of  what  was  done  or  intended  at  the 
time  of  the  purchase  being  made.^  Thus,  in  one  case  the  hus- 
band was  allowed  to  show  that,  when  he  had  the  deed  made  in 
the  name  of  his  wife,  he  supposed  that  at  her  death  it  would 
come  to  him,  and  a  trust  was  lield  to  result  accordingly .^  In 
another  case  the  husband  alleged  that  the  whole  consideration 
was  paid  by  him,  and  that  the  deed  was  made  to  his  wife  witli-' 
out  his  knowledge  or  direction  and  against  his  will,  and  that 
when  he  found  it  had  been  so  made  he  was  informed  that  it  would 
not  affect  his  rights  in  the  property,  but  that  after  her  death 
the  whole  property  would  come  to  him  ;  and  these  allegations 
were  held  sufficient  on  demurrer  to  establish  a  resulting  trust 
for  him.^  But  where  the  husband  paid  part  of  the  purchase- 
money  for  land  conveyed  to  the  wife,  but  such  payment  was 
subsequent  to  the  purchase,  and  formed  no  part  of  the  original 
transaction,  no  trust  resulted  in  his  favor.*  And  where  he  paid 
a  part  of  the  purchase  out  of  the  moneys  of  the  wife,  and  a  part 
out  of  his  own,  and  took  the  deed  in  the  name  of  a  stranger,  a 
trust  was  held  to  result  to  him  and  his  wife,  pro  rata,  according 
to  the  amount  paid  by  each.^  This  presumption  of  an  advance- 
ment to  the  wife  is  much  strengthened  by  the  influence  of  the 
rule  of  the  common  law  that  a  wife  cannot  be  trustee  for  her 


103 ;  Murpliy  v.  Nathans,  46  Penn.  St.  508,  where  the  mother  took  a  deed  in  her 
daughter's  name.     Cairns  v.  Colburn,  104  Mass.  274. 

1  Bent  V.  Bent,  44  Vt.  555  ;  Milner  v.  Freeman,  40  Ark.  62 ;  Bartlett  v.  Bart- 
lett,  15  Neb.  593;  s.  c.  13  Neb.  456;  Bureu  v.  Buren,  79  Mo.  538  ;  Seibold  v. 
Christman,  75  Mo.  308;  Harden  v.  Darwin,  66  Ala.  55;  Wormouth  i'.  Johnson, 
58  Cal.  621 ;  Lorentz  v.  Lorentz,  14  W.  Va.  809.  Of  course,  if  the  deed  is  taken 
in  the  wife's  name,  for  the  purpose  of  defrauding  creditors,  the  conveyance  is  void 
as  against  them.  This  rule,  however,  belongs  to  a  different  branch  of  the  law,  and 
will  not  be  here  discussed.  See  Bartlett  v.  Bartlett,  15  Neb.  593;  s.  c.  13  id. 
456  ;  Eastham  v.  Roundtree,  56  Tex.  110. 

2  Dickinson  v.  Davis,  43  N.  H.  647  ;  Wallace  v.  Bowen,  28  Vt.  638.  See  also 
Mutual  Fire  Ins.  Go.  v.  Deale,  18  Md.  26;  Pembroke  v.  Allenstown,  21  N.  H.  107  ; 
Milner  v.  Freeman,  40  Ark.  62. 

8  Gogherty  v.  Bennett,  37  N.  J.  Eq.  87.  And  a  similar  decision  was  given 
where  the  deed  was  made  in  the  wife's  name  against  the  husband's  will  and  with- 
out his  knowledge.  Persons  v.  Persons,  25  N.  J.  Eq.  250.  So  where  the  husband 
gave  the  wife  money  to  buy  land,  the  title  to  be  taken  in  his  name,  and  she  took 
it  in  their  joint  names.     Higgins  v.  Higgins,  14  Abb,  N.  Cas.  13. 

*  Francestown  v.  Deering,  41  N.  U.  442. 

»  Hall  V.  Young,  37  N.  H.  134. 


CLASSIFICATION   OF   TRUSTS.  433 

husband.^  But  as  married  women  have  been  gradually  individ- 
ualized and  have  become  capable  of  acting  in  many  respects  as 
if  unmarried,  this  rule  has  been  abrogated,  and,  as  has  been 
shown  above,  such  transactions  are  open  to  explanation,  so  as  to 
get  at  the  real  intention  of  the  parties.^  A  like  presumption  of 
an  advancement  prevails  where  a  grandfather  purchases  in  the 
name  of  a  grandchild.'^  But  whether  a  trust  results  or  not  in 
favor  of  a  father  who  purchases  land  in  the  name  of  a  son,  is  a 
question  of  intention  which  may  be  proved  by  parol,  if  it  do 
not  contradict  the  terms  of  a  deed,  and  the  evidence  relate  to 
what  was  contemporaneous  with  the  purchase.*  The  law  in 
such  cases  presumes  in  favor  of  an  advancement,  subject,  how- 
ever, to  be  controlled  by  proof.^  Where  a  father  paid  partly 
out  of  his  daughter's  funds,  and  partly  out  of  his  own,  taking 
the  deed  to  himself,  but  charged  what  he  had  paid  as  an 
advancement,  it  was  held  to  create  a  resulting  trust  in  favor  of 
his  daughter.^  So  where  a  fatiier,  for  the  purpose  of  making 
an  advancement  to  a  daughter,  a  feme  covert^  purchased  land, 
and  had  the  deed  made  to  her  husband,  he  agreeing  to  hold  it 
for  her,  it  was  held  to  create  a  trust  in  her  favor.'^ 

1  Kingdon  v.  Bridges,  2  Vern.  67;  Jenoks  v.  Alexander,  11  Paige,  619  ;  Alex- 
ander V.  Warrance,  17  Mo.  228  ;  1  Cruise,  Dig.  402  ;  Story,  Eii-  Jur.  §  1204. 

2  Tebbets  v.  Tilton,  31  N.  H.  273  ;  Rankin  v.  Harper,  23  Mo.  578  ;  Eddy  v. 
Baldwin,  id.  588;  Guthrie  v.  Gardner,  19  Wend.  414.  It  is  now  generally  held 
that  a  wife  may  be  considered  a  trustee  for  her  husband.  See  cases  supra ;  Gogherty 
V.  Bennett,  37  N.  J.  Eq.  87  ;  Smith  v.  Strahan,  16  Te.x.  314  ;  Seibold  v.  Chiist- 
man,  75  Mo.  308  ;  Mass.  Pub.  St.  c.  147,  §  5  ;  Sawyer's  App.,  16  N.  H.  460 ;  post, 
§  1486. 

3  Co.  Lit.  290  h,  note  249,  §  8  ;  Willis,  Trust.  51. 

*  Benson  v.  Matsdorf,  11  Johns.  91  ;  Baker  v.  Vining,  30  Me.  121  ;  Shepherd 
V.  White,  10  Tex.  72  ;  Co.  Lit.  290-6,  note  249,  §  8  ;  Rankin  v.  Harper,  23  Mo. 
579;  Shepherds.  White,  11  Tex.  346. 

5  Livingston  v.  Livingston,  2  Johns.  Ch.  539,  540  ;  Gee  v.  Gee,  32  Miss.  190  ; 
Smith  V.  Strahan,  16  Tex.  314  ;  Milner  v.  Freeman,  40  Ark.  62.  There  is  no  such 
jiresumption  of  an  advancement  where  a  child  purchases  land  and  takes  the  deed  in 
the  name  of  a  parent.  Such  a  case  is  prima  facie  a  case  of  resulting  trust.  Howell 
V.  Howell,  15  N.  J.  Eq.  77  ;  Johnson  v.  Anderson,  7  Baxt.  251  ;  Cramer  v.  Hoose, 
93  lU.  503.  So  it  has  been  held  that  if  a  son  gets  his  mother  to  buy  land  for  liim, 
and  he  pays  for  it,  but  the  deed  is  taken  in  her  name,  there  is  a  resulting  trust  in 
his  favor,  and  the  fact  that  she  paid  the  taxes  on  the  laud  for  several  years  does 
not  destroy  the  trust.     Van  Syckle  i;.  Kline,  34  N.  J.  Eq.  332. 

6  Beck  V.  Graybill,  28  Penn.  St.  66. 

7  Peitfer  v.  Lytle,  58  Penn.  St.  389,  391.     And  this  is  true  where  only  a  part  of 
VOL.  11.  — 28 


434  TRUSTS. 

§  1425.  Purchase  effected  with  Wife's  Money.  —  A  class  of 
cases  somewhat  connected  with  the  foregoing,  is  where  a  hus- 
band has  bought  land  with  his  wife's  money  and  taken  the 
deed  in  his  own  name.  At  common  law,  and  until  lately  in 
the  United  States,  no  trust  could  arise,  since  the  wife's  money 
was  the  husband's  money,  and  when  he  reduced  it  into  his 
possession  by  taking  it  to  buy  the  land,  he  was  only  using  his 
own  money,  and  no  trust  resulted.^  At  the  present  day  in 
most  of  the  United  States,  a  married  woman  is  allowed  to  hold 
as  her  separate  estate  such  property  as  she  had  before  marriage, 
or  as  comes  to  her  by  request  or  gift,  or  is  earned  by  her  dur- 
ing marriage.  Consequently  the  courts  of  such  States  have 
held  that  if  the  husband  uses  this  separate  estate  of  the  wife  to 
buy  land  for  her  and  takes  the  deed  in  his  own  name,  a  trust 
results  in  her  favor.^  If  a  part  only  of  the  purchase-money  is 
paid  by  the  wife  and  the  rest  by  the  husband,  the  wife  has  a 
resulting  trust  in  proportion  to  the  amount  paid  by  her,^  and 
she  takes  this,  not  jointly  with  her  husband,  but  as  a  separate 
interest  in  the  land.*  The  important  point  in  establishing  such 
a  trust  is  to  show  that  the  money  used  in  buying  the  land  was 
the  separate  property  of  the  wife.^  This  may  be  done  by  show- 
ing that  she  obtained  it  by  bequest  or  inheritance,  or  in  other 
ways.^  The  proof  on  this  point  must  be  clear  and  convincing, 
especially  where  the  result  of  establishing  such  a  trust  would 
be  to  deprive  the  husband's  creditors  of  the  land.'^     In  some 

the  purchase-money  is  advanced  by  the  wife's  father.     Lewis  v.  Montg.  Building, 
etc.  Assoc,  70  Ala.  276. 

1  Westerfield  v.  Kimmer,  82  Ind.  365  ;  Waldrou  v.  Sandars,  85  Ind.  270.  Unless 
perhaps  where  the  title  was  fraudulently  taken  by  the  husband.  Tracy  v.  Kelley, 
52  Ind.  5Sf: 

2  Rupp's  App.,  100  Penn.  St.  531  ;  Peiffer  v.  Lytle,  58  id.  386;  Thomas  v. 
Standiford,  49  Md.  181  ;  Hayward  v.  Cain,  110  Mass.  273;  Goldsberry  v.  Gentry, 
92  Ind.  193  ;  Boyer  v.  Libbey,  88  Ind.  235  ;  Milner  v.  Hyland,  77  Ind.  458  ; 
I.often  V.  Witboard,  92  111.  461  ;  Moss  v.  Moss,  95  111.  449  ;  Parker  v.  Coop,  60 
Tex.  Ill  ;  English  v.  Law,  27  Kan.  242;  Roy  v.  McPherson,  11  Neb.  197.  But 
if  the  money  is  not  her  separate  estate,  the  common  law  rule  applies,  and  no  trust 
results.     Moilrell  v.  Riddle,  82  Mo.  31. 

3  Rupp's  App.,  100  Penn.  St.  531. 
*  Hayward  v.  Cain,  110  Mass.  273. 

6  Crutcher  v.  Taylor,  66  Ala.  217  ;  Joyce  v.  Haines,  33  JST.  J.  Eq.  99. 

®  Rupp's  App.,  supra;  Westerfield?;.  Kimmer,  82  Ind.  365  ;  Radcliff  v.  Rad- 
ford, 96  Ind.  482. 

7  Thomas  v.  Standiford,   49  Md.  181  ;  Besson  v.  Eveland,  26  N.  J.  Eq.  472  ; 


CLASSIFICATION   OF   TRUSTS.  435 

States,  as  will  be  shown  hereafter,^  no  trust  results  from  the 
payment  of  the  purchase-money  where  the  deed  is  taken  in 
another's  name,  unless  it  is  done  without  the  knowledge  and 
consent  of  the  person  who  paid  the  money.  In  these  States 
the  same  rule  applies  to  the  case  of  purchase  by  the  husband 
with  the  wife's  money .^  And  in  any  case,  the  fact  that  the 
deed  was  made  to  the  husband  without  the  wife's  knowledge  or 
against  her  will,  strengthens  the  case.^  When  such  a  trust  is 
once  established,  the  fact  that  the  wife  takes  a  judgment  or  a^ 
promissory  note  for  the  money,  does  not  convert  her  to  a  mere 
creditor  of  the  husband  ;  *  but  if  the  money  was  originally 
loaned  to  the  husband  on  his  own  account,  the  transaction 
would  not  create  a  resulting  trust.^  The  trust  binds  all  who 
take  the  land  by  inheritance  from  the  husband  ^  and  any  pur- 
chaser who  has  notice  of  the  trust ;  but  a  purchaser  who  pays  a 
valuable  consideration  for  the  land  and  has  no  notice  of  the 
trust,  holds  the  land  discharged  of  the  trust.'  The  proceeds 
of  the  sale,  however,  if  they  can  be  identified,  or  land  taken  in 
exchange,  are  subject  to  the  trust  in  the  hands  of  the  husband, 
or  any  one  who  takes  them  with  notice  of  the  trust. ^  If  the 
wife  allows  the  husband  to  use  the  land  for  many  years  and  to 
represent  it  as  his,  she  cannot  assert  the  trust  against  his 
creditors,^  and  the  trust  is  barred  by  her  general  release  after 
separation. ^'^ 

Tilford  V.  Torrey,  53  Ala.  120  ;  Hyden  v.  Hyden,  6  Baxt.  406  ;  Page  v.  Gillen- 
tiue,  6  Lea,  240. 

1  Post,  §§  1429,  1507. 

2  Bibb  V.  Smith,  12  Heisk.  728  ;  Loften  v.  Witboard,  92  lU.  461.  In  Indiana, 
if  the  deed  is  taken  in  the  husband's  name,  with  the  knowledge  of  the  wife,  it 
vests  the  legal  title  at  once  in  the  wife.     Milner  v.  Hyland,  77  Ind.  462. 

8  Riipp's  App.,  100  Penn.  St.  531  ;  Fillman  v.  Divers,  31  Penn.  St.  429  ;  Eng- 
lish V.  Law,  27  Kan.  242  ;  Roy  v.  McPherson,  11  Neb.  197. 

*  Rupp's  App.,  supra ;  Fillman  v.  Divers,  supra. 
6  Humes  v.  Scruggs,  94  U.  S.  22. 

8  Derry  v.  Derry,  74  Ind.  560. 

'  Rupp's  App.,  supra;  Catherwood  v.  Watson,  65  Ind.  576;  Westerfield  v. 
Kimmer,  82  Ind.  365  ;  McCaskill  f.  Lathrop,  63  Ga.  96. 

*  Rupp's  App.,  supra;  Walker  v.  Ellidge,  65  Ala,  51. 

9  Besson  v.  Eveland,  26  N.  J.  Eq.  468  ;  Roy  v.  McPherson,  11  Neb.  197.  As 
to  the  law  in  Mississippi  regarding  creditors  of  the  husband,  see  Myers  v.  Little, 
60  Miss.  203. 

w  Moss  V.  Moss,  95  111.  449. 


436  TRUSTS. 

§  1426.  Consideration  furnished  by  one,  Title  taken  in  Name 
of  another.  —  J>y  far  the  most  numerous  class  of  cases,  where 
the  doctrine  of  resulting  trusts  has  been  sought  to  be  applied, 
are  those  where  the  purchase-money  for  the  conveyance  of 
lands  has  been  paid  in  part  or  in  whole  by  one  man,  and  the 
title-deed  taken  in  the  name  of  another.^  The  cases  cited 
below  are  but  a  sample  of  those  which  are  scattered  through 
the  books  illustrating  the  application  of  this  doctrine.^  If  A 
buys  land  with  his  own  money,  or  gives  his  note  and  takes  a 
deed  to  B,  it  is  held  that  a  trust  results  to  A.^  If  one  pays 
only  a  part  of  the  purchase-money,  and  another  another  part, 
but  the  definite  proportion  cannot  be  fixed,  no  trust  will  result. 
But  if  the  proportion  of  the  money  paid  by  the  cestui  que  trust 
can  be  ascertained,  a  trust  in  that  proportion  will  be  declared 
in  his  favor.'*  If  the  fact  of  the  payment  being  made  by  the 
one  who  claims  to  be  the  cestui  que  trust  appears  upon  the  deed 
itself,  no  other  declaration  of  the  trust  is  requisite.  If  it  do 
not  so  appear,  the  proof  that  the  payment  was  actually  made 

^  Such  trusts,  as  has  been  before  said,  are  not  within  the  statute  of  frauds,  and 
need  not  be  in  writing  in  order  to  be  valid.  Barrows  v.  Bohan,  4]  Conn.  278  ; 
Burleigh  v.  White,  64  Me.  23  ;  Murry  v.  Sell,  23  W.  Va.  475  ;  Billings  v.  Clinton, 
6  Rich.  (S.  C.)  90  ;  Smith  v.  Pattou,  12  W.  Va.  541 ;  Kane  v.  O'Conners,  78  Va. 
76.  And  see  aiite,  §  1422  ;  McNamarai>.  Garrity,  106  111.  384  ;  Scheererr.  Scheerer, 
109  111.  11. 

2  Lyford  v.  Thurston,  16  N.  H.  406  ;  Farrington  v.  Barr,  36  N.  H.  89  ;  Turner 
(•.  Eford,  5  Jones,  Eq.  106 ;  N.  Y.  Bank  v.  Gary,  39  N.  J.  Eq.  25  ;  Philbrook  v. 
Delano,  29  Me.  410  ;  Brown  v.  Dwelley,  45  Me.  52  ;  McLenan  v.  Sullivan,  13  Iowa, 
521,  525  ;  Freeman  v.  Russell,  40  Ark.  56 ;  Chadwick  v.  Felt,  35  Penn.  St.  305  ; 
Kelley  !;.  Jenuess,  50  Me.  464  ;  Sunderland  v.  Sunderland,  19  Iowa,  328  ;  Lips- 
comb V.  Nichols,  6  Col.  290  ;  McDonald  v.  McDonald,  24  Ind.  68 ;  Carter  v. 
Montgomery,  2  Tenn.  Ch.  216  ;  Perkins  v.  Nichols,  11  Allen,  545  ;  Hutchins  v. 
Heywood,  50  N.  H.  491.  So  if  a  director  buys  land  with  the  money  of  the  com- 
pany, and  takes  the  deed  in  his  own  name,  he  holds  in  trust  for  the  company. 
Mich.  Air  L.  Ry.  Co.  v.  Mellen,  44  Mich.  321. 

3  Howell  V.  Howell,  15  N.  J.  77  ;  Millard  v.  Hathawa.y,  27  Cal.  139  ;  Hunt  v. 
Friedman,  63  Cal.  510;  Baumgartnerv.  Guessfeld,  38  Mo.  36;  Lipscomb  v.  Nichols, 
6  Col.  290.     As  to  the  law  of  New  York,  see  post,  §  1507. 

*  McKeown  v.  McKeown,  33  N.  J.  Eq.  384  ;  Barrows  v.  Bohan,  41  Conn.  278  ; 
Burleigh  v.  White,  64  Me.  23  ;  Murry  v.  Sell,  23  W.  Va.  475  ;  Billings  v.  Clinton, 
6  Rich.  (S.  C.)  90;  McNamara  v.  Garrity,  106  111.  384;  Lipscomb  v.  Nichols, 
6  Col.  290  ;  Sanders  v.  Steele,  124  Ala.  415  ;  s.  c.  26  So.  Rep.  882.  If  the  pur- 
chase is  made  by  a  trustee,  partly  with  trust  funds,  he  must  at  his  peril  show 
what  part  was  his  own,  or  a  trust  will  result  to  the  cestui  in  all  the  land.  Watson 
V.  Thompson,  12  R.  I.  470. 


CLASSIFICATION    OP   TRUSTS.  437 

must  be  clcar,^  and  letters  written  after  the  purcliase  was  made 
may  be  competent  and  sufficient  to  establish  the  trust.  The 
same  rule,  as  above  stated,  applies  where  the  deed  is  taken  in 
the  name  of  the  purchaser  himself  and  another  person.^  If 
one  make  a  voluntary  deed  to  another,  acknowledging  con- 
sideration, or  declaring  a  use  therein,  it  is  conclusive  against 
any  implied  trust ;  ^  but  if  there  be  a  consideration  actually 
paid  by  a  third  person,  he  would  not  be  estopped  by  the  re- 
citals in  the  deed  from  showing  the  facts,  and  thereby  raising 
a  trust  in  his  favor.*  But  merely  signing  a  note  as  surety  with 
a  purchaser  would  raise  no  trust  in  the  surety's  favor,  although 
he  may  have  to  pay  the  debt.^  So  where  A  bought  land  and 
paid  for  it,  and  had  the  deed  made  to  B  upon  his  agreement 
to  repay  the  money  at  a  future  time,  no  trust  was  raised  in 
favor  of  A.  The  intention  of  the  parties  to  the  transaction 
was,  that  B,  and  not  A,  should  be  the  beneficial  owner.^  And 
in  many  of  the  States  the  law  does  not  allow  a  trust  to  result 
in  favor  of  one  paying  tlie  purchase-money,  if  the  deed  is  taken 

1  Burleigh  v.  White,  64  Me.  23;  Billings  v.  Clinton,  6  Rich.  (S.  C.)  90; 
Smith  V.  Patton,  12  W.  Va.  541 ;  U.  S.  Bank  v.  Carrington,  7  Leigh,  581 ;  Miller 
V.  Blose,  30  Gratt.  751  ;  Parker  v.  Snyder,  31  N.  J.  Eq.  169.  This  species  of  trust 
is  not  regarded  with  favor  by  the  courts  of  equity,  on  account  of  its  tendency  to 
unsettle  titles  to  land.  Midnier  v.  Midmer,  26  N.  J.  Eq.  299  ;  Cutler  v.  Tuttle, 
4  C.  E.  Green,  560  ;  Boyd  v.  McLean,  1  Johns.  Ch.  590  ;  Lench  v.  Lench,  10  Ves. 
517.  If  such  a  trust  is  proved,  it  may  be  lost  by  delay  or  laches  on  the  part  of  the 
cestui  que  trust  in  asserting  his  claim.     Midmer  v.  Midmer,  supra. 

2  Barron  v.  Barron,  24  Vt.  375  ;  2  Fonbl.  Eq.  118  ;  Wallace  v.  Duffield,  2Serg. 
&  R.  521  ;  Ensley  v.  Balentine,  4  Humph.  233  ;  1  Spence,  Eq.  Jur.  511;  2  Flint. 
Real  Prop.  811 ;  Crop  v.  Norton,  2  Atk.  75  ;  Baker  v.  Vining,  30  Me.  121  ;  Willis, 
Trust.  60,  107;  1  Cruise,  Dig.  391  ;  Williams  v.  Hollingsworth,  1  Strobh.  Eq. 
103  ;  Botsford  v.  Burr,  2  Johns.  Ch.  405  ;  Harper  v.  Phelps,  21  Conn.  257  ;  Mc- 
Gowan  v.  McGowan,  14  Gray,  119  ;  Sayre  v.  Townsend,  15  Wend.  647  ;  Perry  v. 
McHcnry,  13  111.  227  ;  Smith  v.  Strahan,  16  Tex.  314  ;  White  v.  Carpenter, 
2  Paige,  238  ;  MacGregor  v.  Gardner,  14  Iowa,  343  ;  Seymour  v.  Freer,  8  Wall. 
216  ;  Burleigh  v.  White,  64  Me.  23. 

3  Gould  V.  Lynde,  114  Mass.  366  ;  Connor  v.  Follansbee,  59  N.  H.  124  ;  Jackson 
V.  Cleveland,  15  Mich.  102  ;  Shafter  v.  Huntington,  53  Mich.  310  ;  Graves  v. 
Graves,  29  jST.  H.  129  ;  Van  der  Volgen  v.  Gates,  9  N.  Y.  219;  Farrington  v.  Barr, 
36  N.  H.  86. 

*  Blodgett  V.  Hildreth,  103  Mass.  487  ;  Hogan  v.  Jaques,  19  N.  J.  Eq.  126; 
Botsford  V.  Burr,  2  Johns.  Ch.  408  ;  Linsley  v.  Sinclair,  24  Mich.  380 ;  Jackson  v. 
Cleveland,  15  Mich.  102. 

5  Hopkinson  v.  Dnmas,  42  N.  H.  301 ;  Gee  v.  Gee,  32  Miss.  190. 

6  McCue  V.  Gallagher,  23  Cal.  53. 


438  TRUSTS. 

in  another's  name,  if  there  is  no  fraud  in  the  transaction.^  And 
if  A  makes  the  purchase,  and  B  pays  a  definite  part  or  portion 
of  the  purcliase-money,  intending  thereby  to  secure  an  interest 
in  the  land,  a  trust  will  result  in  that  proportion  in  favor  of  B.^ 
Of  course  in  order  to  create  a  resulting  trust  by  the  payment 
of  money,  it  must  appear  that  the  money  belonged  to  the  cestui 
que  trust,  or  had  been  advanced  to  him  as  his  own  by  way  of 
loan.^  A  resulting  trust,  also,  may  arise,  though  there  be  only 
a  bond  given  for  the  deed.*  And  where  one,  having  no  title  to 
the  same,  conveyed  an  estate  by  quitclaim,  with  covenants  for 
further  assurance,  and  afterwards  acquired  a  title  to  the  same, 
it  was  held  that  he  thereby  became  trustee  for  his  grantee.^ 
But  where  one  of  two  joint-purchasers  upon  credit  pays  the 
whole  debt,  it  does  not  raise  a  resulting  trust  in  his  favor.^  In 
carrying  out  the  doctrine  above  stated,  it  has  been  held,  that 
the  payment  which  raises  a  resulting  trust  must  be  part  of  the 
transaction,  and  relate  to  the  time  when  the  purchase  was 
made.  Any  subsequent  application  or  advance  of  the  funds 
of  another  than  the  purchaser  towards  paying  the  purchase- 
money  will  not  raise  a  resulting  trust.'^     And  while  the  fact 

1  Post,  §  1429  ;  Everett  v.  Everett,  48  N.  Y.  218 ;  Mitchell  v.  Skinner,  17  Kan. 
563. 

2  Purdy  V.  Purdy,  3  Md.  C'h.  547  ;  Pierce  v.  Pierce,  7  B.  Mon.  433  ;  Shoemaker 
V.  Smith,  11  Humph.  81  ;  Franklin  v.  McEntyre,  23  111.  91  ;  Hidden  v.  Jordan, 
21  Cal.  92  ;  Bayle.s  v.  Baxter,  22  Cal.  578  ;  Green  v.  Dnimmond,  31  Md.  71. 

3  Getman  v.  Getman,  1  Barb.  C'h.  499  ;  Pegues  v.  Pegues,  5  Ired.  Eq.  418  ; 
Olive  V.  Dougherty,  3  Greene  (Iowa),  371  ;  Sullivan  v.  McLenans,  2  Iowa,  442. 

*  Williams  v.  Brown,  14  111.  200. 

5  Hope  V.  Stone,  10  Minn.  141. 

6  Brooks  V.  Fowle,  14  jST.  H.   248. 

■  Alexander  v.  Tanis,  13  111.  221  ;  Perry  v.  McHenry,  id.  227 ;  Buck  v.  Swazey, 
35  Me.  41  ;  Gee  v.  Gee,  2  Sneed,  395  ;  Whiting  v.  Gould,  2  Wis.  552  ;  Kelly  v. 
Johnson,  28  Mo.  249  ;  Howell  v.  Howell,  15  N.  J.  Eq.  78  ;  Green  v.  Drummond, 
supra  ;  Niver  v.  Crane,  98  N.  Y.  40  ;  Midnier  v.  Midnier,  26  N.  J.  Eq.  299  ;  Bur- 
leigh V.  White,  64  Me.  23  ;  Miller  v.  Blose,  30  Gratt.  744 ;  Duval  v.  ilarshall, 
30  Ark.  230.  So  if  a  guardian  uses  the  money  of  his  ward  in  making  improvements 
upon  land  which  he  already  owns,  no  trust  results,  since  the  trust  must  arise,  if  at 
all,  at  the  time  of  the  conveyance  of  the  land.  Cross's  App.,  97  Penn.  St.  471  ; 
Coles  V.  Allen,  64  Ala.  98.  So  where  one  entered  into  a  valid  contract  for  the  pur- 
chase of  a  piece  of  land,  and  acquired  a  complete  equitable  title  and  entered  into 
possession,  the  fact  that  before  the  legal  title  to  the  land  was  conveyed  to  him, 
money  belonging  to  the  estate  of  a  deceased  person  who  had  never  claimed  any 
interest  in  the  land  was  applied  to  the  payment  of  part  of  the  purchase-money  still 
due,  was  held  not  sufficient  to  create  a  resulting  trust.     Bickel's  App.,   86  Penn. 


CLASSIFICATION   OF   TRUSTS.  439 

from  which  the  law  raises  the  trust  may  be  shown  by  the  sub- 
sequent admissions  of  the  supposed  trustee,  no  subsequent 
agreement,  if  orally  made,  can  create  a  trnst.^  Nor  will  a 
trust  be  allowed  to  result  so  as  to  intervene  and  defeat  prior 
or  superior  equities.^  So  where  three  bought  and  paid  for 
land,  and  the  deed  was  taken  by  two,  witli  a  parol  agreement 
with  the  third  that  he  should  have  wood  from  the  same  during 
life,  no  resulting  trust  arose  in  his  favor,  since  the  deed  was 
according  to  the  agreement  of  the  parties.^  And  where  A  sold 
land  to  B  upon  a  parol  agreement  to  support  A  for  life,  and 
after  his  death  to  pay  a  sum  of  money,  it  was  held  not  to  raise 
a  resulting  trust  in  favor  of  A.*  If  an  agent  fraudulently  pur- 
chase land  for  himself  with  his  principal's  money,  he  will  be 
held  as  trustee  therefor.^  And  it  is  stated  generally,  that,  in 
order  to  create  a  resulting  trust,  there  must  either  be  a  fraud: 
in  obtaining  the  title,  or  a  payment  of  the  purchase-money  by 
the  one  in  whose  favor  it  is  raised  at  the  time  when  the  title  is 
acquired.  No  subsequent  payment  will  raise  such  a  trust.^  A 
resulting  trust  must  arise,  if  at  all,  at  the  time  of  the  purchase, 
and  not  from  any  subsequent  payment.''    But  where  a  husband 

St.  204.  In  this  case  there  was  no  evidence  of  any  definite  agreement  under  which 
the  apj)lication  of  the  money  was  made.  It  may  be  doubted  whether  the  payment 
may  not  be  made  at  any  time  prior  to  the  legal  conveyance,  though  after  the  pur- 
chaser has  acquired  an  equitable  title,  provided  he  has  not  paid  the  vendor  the 
purchase-money.     Murry  v.  Sell,  23  W.  Va.  475. 

1  Blodgett  V.  Hildreth,  103  Mass.  487  ;  Hogan  v.  Jaques,  19  N.  J.  Eq.  127. 
Where  an  implied  trust  has  been  create<l  IVoni  existing  facts,  a  court  of  equit\'  will 
enforce  it  by  decreeing  a  conveyance  of  the  estate.  Ripley  v.  Bates,  110  Mass-. 
162. 

2  McLenan  v.  Sullivan,  13  Iowa,  521,  525. 

3  Dow  V.  Jewell,  21  N.  H.  470. 

*  Hunt  V.  Moore,  6  Cush.  1.  The  following  cases  sustain  the  general  doctrine 
of  resulting  trusts  in  cases  like  those  above  stated  :  Tarpley  v.  Poage,  2  Tex.  139  ; 
Mahorner  r.  Harrison,  13  Sm.  &  M.  53  ;  Smith  v.  Sackett,  10  111.  534;  Paul  v. 
Chouteau,  14  Mo.  580  ;  Long  y.  Steiger,  8  Tex.  460  ;  Creed  v.  Lancaster  Bank, 
1  Ohio  St.  1;  Rankin  i'.  Harper,  23  Mo.  579. 

6  Wells  V.  Robinson,  13  Cal.  133  ;  Green  v.  Clark,  31  Cal.  591.  But  if  he 
buys  with  his  own  money  there  can  be  no  resulting  trust  in  favor  of  the  principal. 
Nestal  V.  Schmid,  29  N.  J.  Eq.  458. 

6  Barnet  v.  Dougherty,  32  Penn.  St.  371  ;  Kellum  v.  Smith,  33  Penn.  St.  164  ; 
Bickel's  App.,  86  Penn.  St.  204  ;  Cross's  App.,97  Penn.  St.  471  ;  Walter  v.  Klock, 
55  111.  362 ;  Francestown  v.  Deering,  41  N.  H.  443  ;  Davis  v.  Wetherell,  11  Allen, 
19,  20,  note. 

T  Brawner  r.  Stiuip,  21  Md.  337  ;  Barnard  v.  Jewett,  97  Mass.  87. 


440  TRUSTS, 

borrowed  money  of  his  wife,  which  he  invested  in  land,  it  was 
his  money,  and  not  hers,  and  no  trust  resulted  in  her  favor. 
And  even  where  he,  having  borrowed  money  of  her,  promised 
to  invest  it  in  real  estate,  and  to  take  the  title-deed  to  her,  but 
bought  land  and  took  the  deed  to  himself,  it  was  held  to  raise 
no  trust ;  for  if  it  was  a  trust  at  all,  it  was  an  express  one, 
which  could  be  raised  only  in  writing.  ^  And  the  cases  arc 
numerous  where  bidders  at  auctions,  who  have  become  pur- 
chasers of  estates,  have  either  been  held  to  be  trustees  for 
others,  or  required  by  courts  of  equity  to  convey  the  same  to 
such  other  persons,  on  the  ground  that  the  purchase  has  been 
made  at  an  inadequate  price,  by  means  of  falsely  representing 
that  the  purchaser  was  bidding  for  the  other,  who  had  some 
interest  to  save  from  sacrifice,  as  that  he  was  mortgagor  of  the 
estate,  or  the  like.  It  was  held  to  be  a  fraud  on  the  part  of 
the  purchaser.^ 

§  1427.  Parol  Evidence  is  competent  to  rebut  the  presump- 
tion of  a  resulting  trust,  provided  it  is  not  offered  to  contradict 
the  terms  of  the  instrument  creating  the  estate.^  Thus  the 
declaration  of  the  purchaser  made  at  the  time  of  the  sale,  and 
as  apart  of  the  res  (/estce,\s  evidence  bearing  upon  the  question 
whether  the  payment  then  made  raised  a  resulting  trust  or 
not.*  And  if  the  purchaser  actually  pay  his  own  money,  no 
oral  declaration  of  an  intent  to  raise  a  trust  in  favor  of  another 
will  be  of  any  effect.^ 

§  1428.  A  Resulting  Trust  may  be  established  by  Parol,  even 
against  the  recitals  in  the  deed.  Thus  it  is  competent  to  show 
the  actual  payment  of  the  purchase-money  by  a  person  other 

1  Gibson  v.  Foote,  40  Miss.  792.     But  .see  ante,  §  1425. 

^  Ryan  v.  Dox,  34  K  Y.  307,  315;  Brown  v.  Lynch,  1  Paige,  147  ;  Cox  v.  Cox, 

5  Rich.  Eq.  365  ;  Keith  v.  Purvis,  4  Desaus.  114  ;  Peebles  v.  Reading,  8  Serg.  & 
R.  492  ;  Cowperthwaite  v.  Carbondale  Bank,  102  Penn.  St.  397  ;  Baier  y.  Berberich, 

6  Mo.  App.  537. 

3  Strirapfler  u.  Roberts,  18  Penn.  St.  283;  1  Spence,  Eq.  Jur.  511;  1  Cruise, 
Dig.  392 ;  Jackson  v.  Feller,  2  Wend.  465  ;  Botsford  v.  Burr,  2  Johns.  Ch.  405  ; 
Livermore  v.  Aldrich,  5  Cush.  431  ;  Adams  v.  Guerard,  29  Ga.  651  ;  White  v. 
Carpenter,  2  Paige,  238  ;  Dow  v.  Jewell,  1  Foster,  489  ;  Shepherd  y.  White,  11  Tex. 
346  ;  Hopkinson  v.  Dumas,  42  N.  H.  303  ;  Perkins  v.  Kichols,  11  Allen,  545. 

*  Edwards  v.  Edwards,  39  Penn.  St.  378. 

^  Lloyd  V.  Lynch,  28  Penn.  St.  419  ;  post,  §  1461  ;  Roberts  v.  Ware,  40  Cal. 
634. 


CLASSIFICATION    OF   TRUSTS.  441 

than  the  one  who  takes  the  deed,  as  well  as  the  actual  owner- 
ship of  the  purchase-money. 1  ]3ut  no  one  can  set  up  a  result- 
ing trust  unless  he  pay  the  money  by  which  the  purchase  is 
made  :  he  would  not  do  it  by  showing  the  purchase  was  made 
for  his  benefit,  or  that  there  was  a  subsequent  parol  agreement 
by  the  one  who  receives  the  deed  in  respect  to  holding  the  land 
in  trust.^  And  it  must,  moreover,  be  shown  that  the  money 
was  actually  paid,  directly  or  indirectly,  by  the  one  who  claims 
to  be  cestui  que  trust.  It  would  not  be  sufficient  to  show  that 
he  requested  the  one  who  made  the  purchase  to  do  so,  and 
promised  to  repay  him  what  he  paid  for  the  same.^  It  is  not 
necessary  to  show  that  the  purchase-money  was  actually  paid 
at  the  time  of  the  conveyance  made :  it  would  be  sufficient  to 
show  that  it  was  paid  in  pursuance  of  the  contract  by  which 

1  Livermore  v.  Aldrich,  5  Cu3h.  431 ;  Coates  v.  Woodworth,  13  111.  654  ;  Nich- 
ols i\  Thornton,  16  111.  113  ;  German  v.  Gabbald,  3  Binn.  302;  Slaymaker  y.  St. 
John,  5  Watts,  27  ;  Strinipfler  v.  Roberts,  18  Penn.  St.  283  ;  Lloyd  v.  Carter, 
17  Penn.  St.  216  ;  Hollis  v.  Hayes,  1  Md.  Ch.  479  ;  "Witts  v.  Horney,  59  Md.  584  ; 
Boyd  i;.  M'Leun,  1  Johns.  Ch.  582  ;  Midmer  v.  Midmer,  26  N.  J.  Eq.  304  ;  Pea- 
body  V.  Tarbell,  2  Gush.  226,  232  ;  Story,  Eq.  Jur.  §  1201  and  note  ;  Jackson  d. 
Feller  v.  Feller,  2  Wend.  465  ;  Pritchard  v.  Brown,  4  N.  H.  397  ;  Connor  v.  Fol- 
lansbee,  59  N.  H.  124  ;  Drum  t'.  Simpson,  6  Binn.  478  ;  Neill  v.  Kese,  5  Tex.  23  ; 
Reid  V.  Fitch,  11  Barb.  399;  Bryant  v.  Hendricks,  5  Iowa,  256;  Lipscomb  i'. 
Nichols,  6  Col.  290  ;  Murry  v.  Sell,  23  W.  Va.  475;  Heiskell  j;.  Powell,  id.  717. 
The  admission  of  such  evidence  was  reluctantly  allowed  by  courts  of  equity,  and 
they  require  clear  and  convincing  proof  in  regard  to  the  payment  of  the  consider- 
ation. Whitmore  v.  Learned,  70  Me.  276.  This  is  required  on  account  of  the 
danger  of  rendering  record  titles  insecure.  Witts  v.  Horney,  59  Md.  584  ;  Mc- 
Keown  v.  McKeown,  33  N.  J.  Eq.  384.  If,  moreover,  the  evidence,  however  clear, 
shows  that  the  money  was  advanced  as  a  loan  by  the  person  claiming  to  be  a  cestui 
que  trust  to  the  person  in  whose  name  the  deed  was  taken,  there  is  no  resulting 
trust,  since  the  money  is  the  money  of  the  purchaser  of  the  land.  A  test  of  this  is 
the  question  whether  the  purchaser  might  be  sued  for  the  money  as  a  debt  by  the 
]ierson  who  advanced  it.  If  he  could,  there  is  no  resulting  trust.  The  question  is 
often  a  difficult  one,  and  depends  much  on  the  other  facts  in  the  case.  Burleigh  v. 
White,  64  Me.  23  ;  Harvey  v.  Pennypacker,  4  Del.  Ch.  445  ;  Midmer  v.  Midmer, 
26  N.  J.  Eq.  299  ;  Witts  v.  Horney,  59  Md.  584,  587  ;  Whaley  v.  Whaley,  71  Ala. 
159  ;  Meredith  v.  Citizens'  Bank,  92  Ind.  343.  If  one  loan  money  to  another,  who 
then  gives  it  to  a  third  to  buy  land,  and  the  third  takes  the  deed  in  his  own  name, 
a  trust  results  to  the  second  and  not  to  the  first.  Heiskell  v.  Powell,  23  W.  Va. 
717.     Cf.  ante,  §  1426. 

2  Botsford  I'.  Burr,  supra ;  Barnard  v.  Jewett,  97  Mass.  87  ;  Green  v.  Drum- 
mond,  31  Md.  71  ;  Dorsey  v.  Clarke,  4  Har.  &  J.  556  ;  Roberts  v.  Ware,  40  Cal. 
634  ;  Campbell  v.  Brown,  129  Mass.  23. 

3  Kendall  v.  Mann,  11  Allen,  17  ;  Perkins  v.  Nichols,  11  Allen,  546  ;  Bayles  v. 
Baxter,  22  Cal.  579. 


442  TRUSTS. 

the  purchase  was  made.^  Thus  it  has  been  held  in  Maine, 
that,  if  a  deed  absolute  in  its  terms  was  intended  only  to 
secure  a  debt,  a  trust  resulted  in  favor  of  the  grantor,  that, 
if  he  pay  the  debt  witliin  a  reasonable  time  after  due,  the 
grantee  should  reconvey  it,  or  account  for  the  proceeds  if  lie 
should  have  sold  it.^  So  where  A  wished  to  purchase  an  es- 
tate, and  borrowed  the  purcliase-raoney  of  B,  and  had  the  deed 
made  to  B  as  security  for  the  loan,  it  was  held  that  a  trust 
resulted  to  A,  although  the  money  passed  immediately  from 
the  hands  of  B  to  the  vendor,  and  the  consideration  was  stated 
in  the  deed  to  have  been  paid  by  B.^  But  where  a  debtor,  in 
order  to  secure  his  creditor,  assigned  a  bond  conditioned  to 
convey  land,  under  a  verbal  agreement  to  hold  it  as  collateral 
security,  and  the  debtor  having  failed  to  pay  the  debt,  the  as- 
signee of  the  bond  paid  the  purchase-money  to  the  obligor,  and 
took  a  deed  of  the  land  to  himself,  it  was  lield  not  to  raise  a 
trust  in  favor  of  the  debtor.*  But  where  the  person  claiming 
the  beneficial  interest  in  land  purchased  in  another's  name  has 
not  actually  paid  any  part  of  the  purchase-money,  it  is  not 
competent  to  raise  a  trust  in  his  favor  by  showing,  by  parol, 
that  the  purchase  was  made  by  agreement  for  his  benefit.^ 
Nor  can  a  resulting  trust  be  proved  by  the  parol  declarations 
of  the  purchaser  that  he  holds  the  land  for  another.^ 

§  1429.  Statutory  Restrictions  of  the  Doctrine  of  Resulting 
Trusts. —  In  some  States  the  law  will  not  admit  of  a  trust  re- 
sulting from  the  payment  of  the  purchase-money,  where  the 
deed  is  taken  in  another's  name,  with  the  knowledge  and  con- 
sent of  the  person  who  paid  the  money.'     This,  as  will  appear 

1  Bk)dgett  V.  Hildreth,  103  Mass.  487. 

2  Richardson  v.  Woodbury,  43  Me.  208.  But  see  Ratliff  v.  Ellis,  2  Iowa,  .^9  ; 
Hall  V.  Young,  37  N,  H.  134. 

8  Millard  v.  Hathaway,  27  Cal.  140;  Boyd  v.  M'Lean,  1  Johns.  Ch.  591. 

*  Ramsdell  v.  Emery,  46  Me.  311. 

s  Botsford  V.  Burr,  2  Johns.  Ch.  40.5  ;  Bartlett  v.  Pickersgill,  4  East,  578,  n.  ; 
Jackman  v.  Ringland,  4  Watts  &  S.  149  ;  Stephenson  v.  Thompson,  13  111.  186. 

6  Sample  v.  Coulson,  9  Watts  &  S.  62.  But  see  Harder  v.  Harder,  2  Sandf. 
Ch.  17.  But  an  act  done,  such  as  the  payment  of  the  consideration  by  another, 
may  be  proved  by  the  admission  of  the  one  in  whose  name  the  purchase  was  made, 
for  the  purpose  of  raising  a  resulting  trust.  Lloyd  v.  Carter,  17  Penn.  St.  216  ; 
Peebles  v.  Reading,  8  Serg.  &  R.  492  ;  Irwin  v.  Ivers,  7  Ind.  308  ;  post,  §  1461. 

■^  Sumner  v.  Sawtelle,  8  Minn.  318,  320  ;  Wynn  v.  Sharer,  23  Ind.  573,  575  ; 
Groesbeck  v.  Seeley,  13  Mich.  345. 


CLASSIFICATION    OF   TRUSTS.  443 

hereafter,  is  the  law  in  New  York.^  So,  in  Kentucky .2  A  like 
rule  prevails  in  Mhinesota,  Indiana,  and  Micliigan.  But  in 
Minnesota,  if  one  pays  money  for  an  estate,  and  takes  a  deed 
in  another's  name,  it  will  be  presumed  to  be  a  fraud,  and  will 
let  in  the  creditors  of  the  one  paying  the  money,  to  levy  upon 
it,  unless  the  tenant  can  negative  the  fraud.  And  if,  in  In- 
diana, an  agent  pays  his  principal's  money,  and  takes  a  deed 
in  the  name  of  a  stranger,  without  the  knowledge  and  assent  of 
the  principal,  it  will  raise  a  trust  in  favor  of  the  latter.^ 

§  1430.  Constructive  Trusts.  —  The  term  constructive  trusts 
is  sometimes  used  in  a  sense  broad  enough  to  embrace  such  as 
come  properly  under  the  head  of  implied  or  resulting  trusts. 
But,  properly  speaking,  constructive  trusts  are  such  as  are 
raised  by  equity  in  respect  to  property  which  has  been  acquired 
by  fraud,  or  where,  though  acquired  originally  witiiout  fraud, 
it  is  against  equity  tliat  it  should  be  retained  by  him  who  holds 
the  legal  title.-  The  latter  proposition  may  be  illustrated  by 
the  case  of  a  joint-mortgage  to  two,  one  of  whom  dies,  and  the 
survivor  forecloses  the  same.  The  latter  would  be  held  as 
trustee  of  one  half  of  the  estate  for  the  heirs  or  representatives 
of  the  deceased  co-mortgagee.^  So  a  debtor  who  buys  in  his 
surety's  land,  sold  for  non-payment  of  the  debt,  is  a  trustee  for 
the  surety  ;  or  rather  takes  no  title  as  against  the  latter.^  So 
a  trust  would  be  raised  and  could  be  shown  by  parol  in  favor 
of  creditors,  where  the  owner  of  land  has  conveyed  it  for  the 
purpose  of  defeating  or  delaying  creditors.  The  law  requiring 
trusts  to  be  declared  in  writing  does  not  apply  to  secret  trusts 
and  confidences  created  for  stich  purposes.'^ 

§  1431.    Ground    on    ■which    Constructive    Trusts    rest.  —  This 

1  Post,  §  1507. 

2  Graves  v.  Graves,  3  Met.  (Ky.)  167;  Hocker  v.  Gentry,  id.  463  ;  Martin  v. 
Martin,  5  Bush,  47. 

8  Sumner  v.  Sawtelle,  8  Minn.  318,  320;  Wynn  v.  Sharer,  23  Ind.  573,  577  ; 
Groesbeck  v.  Seeley,  13  Mich.  345;  Fisher  v.  Fobes,  22  Mich.  454. 

*  1  Spence,  Eq.  Jur.  511  ;  Lewin,  Trusts,  43,  n.  170.  "  Such  a  trust  is  raised 
wherever  a  person,  clothed  with  a  fiduciary  character,  gains  some  personal  advan- 
tage by  availing  himself  of  his  situation  as  trustee." 

6  Randall  v.  Phillips,  3  Mason,  C.  C.  378  ;  Caines  i-.  Grant,  5  Binn.  119  ;  Laus- 
sat,  Fonbl.  Eq.  385,  note;  Buck  v.  Swazey,  35  ile.  41. 

6  Van  Home  v.  Emerson,  13  Barb.  526  ;  Madgett  v.  Fleenor,  90  Ind.  517. 

f  Hills  V.  Eliot,  12  Mass.  31. 


444  TRUSTS. 

arises  from  the  control  wliich  courts  of  chancery  exercise  over 
equitable  estates,  whereby  in  case  of  fraud,  mistake,  or  the 
like,  they  may  require  a  grantee  to  hold  subject  to  a  trust  in 
favor  of  the  grantor  in  the  nature  of  a  resulting  trust.  But 
the  mere  want  of  a  valuable  consideration  would  not  be  suf- 
ficient to  raise  such  a  trust.^ 

§  1432.  Purchase  by  one  standing  in  Fiduciary  Relation.  —  One 
who,  availing  himself  of  his  power  as  trustee,  purchases  the 
trust  property  for  himself  will  hold  the  property  in  trust  for 
the  person  for  whom  he  was  originally  a  trustee.^  Thus  where 
one,  under  a  power  of  attorney  to  procure  a  soldier's  patent  for 
land,  had  it  fraudulently  made  to  himself,  he  was  held  to  be  a 
trustee  for  the  soldier.^  So  where  an  administrator,  by  license 
of  court,  sold  land  of  the  intestate  and  purchased  it  in  for 
himself,  it  was  held,  that,  at  the  election  of  the  heir,  he  would 
be  held  as  trustee  for  him,  or  required  to  account  for  the  pur- 
chase-money if  the  heir  chose  to  affirm  the  sale.*  The  forms 
in  which  this  doctrine  has  been  raised  and  applied  are  exceed- 
ingly various,  and  the  principle  which  runs  through  them  may 
be  said  to  be  uniform  in  all  the  States.    The  law  will  not  allow 

1  Sand.  Uses,  334  ;  Wms.  Real  Prop.  136.  This  class  of  trusts  comprises  mainly 
those  cases  where  trustees  or  persons  holding  the  position  of  quasi  trustees  have 
purchased  from  the  trust,  for  their  own  benefit.  These  cases  are  within  the  ex- 
ception of  the  statute  of  frauds,  as  arising  by  operation  of  law.  The  extent  of  this 
class  is  necessarily  indefiuite,  and  the  confidential  relation  is  vague.  Perhaps  a 
case  which  reached  the  limit  of  the  rule  is  that  of  Wood  v.  Rabe,  96  N.  Y.  414, 
where  A,  owning  land  upon  which  his  brother-in-law  had  a  judgment  lien  and  re- 
deemable title  by  sheriff's  sale,  was  induced  by  his  mother  and  one  who  had  till 
recently  been  his  guardian,  he  having  just  attained  his  majority,  to  confess  a  judg- 
ment in  favor  of  his  mother,  in  order  that  she  might  redeem  the  land,  upon  her 
promise  to  hold  it  in  trust  for  him.  The  court  in  this  case  held  that  it  would 
not  permit  the  statute  of  frauds  to  be  used  as  an  instrument  of  fraud,  and  that 
the  relation  of  the  parties  entitled  the  son  to  relief  in  equity,  —  a  relation  which, 
if  not  fiduciary  in  the  strict  sense,  was  one  ordinarily  involving  the  greatest  confi- 
dence on  one  side  and  the  greatest  influence  on  the  other,  and  that  the  trust  arose 
from  the  agreement  of  the  mother,  in  connection  with  the  other  circumstances, 
the  interest  of  the  son  in  the  land,  the  confidential  relation  of  the  parties,  the 
youth  and  inexperience  of  the  son,  the  fact  that  he  acted  without  independent  ad- 
vice, and  the  injustice  that  would  result  in  case  the  agreement  should  not  be  en- 
forced, and  that  the  trust  was  valid  in  spite  of  the  statute  of  frauds. 

2  1  Spence,  Eq.  Jur.  512  ;  2  Flint.  Real  Prop.  811  ;  Jenison  v.  Hapgood, 
7  Pick.  8. 

8  Smith  I'.  Wright,  49  111.  409. 
*  Boyd  V.  Blankman,  29  Cal.  20. 


CLASSIFICATION    OF    TRUSTS.  445 

a  man  who  stands  in  a  fiduciary  relation  to  an  estate  to  become 
the  owner  of  the  same,  directly  or  indirectly,  through  the  exer- 
cise of  the  power  or  authority  with  which  he  has  been  intrusted 
in  regard  to  the  estate.^  Nor  does  it  make  any  difference  that 
in  acquiring  the  estate  he  may  have  paid  a  full  price,  or  acted  in 
good  faith  to  his  cestui  que  trust,  or  the  parties  interested  in 
the  estate.^  No  one,  however,  can  impeach  such  a  title  but  the 
cestui  que  trust  or  his  heirs  ;  for  such  purcliase  by  a  trustee  is 
voidable  only,  and   not  void.^     This  may  be   ratified   by  the 

^  Collins  V.  Smith,  1  Head,  251,  applied  to  a  next  friend  of  au  infant ;  Jami- 
son V.  Glascock,  29  Mo.  191  ;  Creveling  v.  Fritts,  34  N".  J.  Eq.  134  ;  Morse  v.  Hill, 
136  Mass.  60  ;  Dodge  v.  Stevens,  94  N.  Y.  209.  Nor  will  it  better  his  position  if 
the  conveyance  is  to  his  wife  ;  for  if  he  paid  the  purchase-money  a  trust  results  to 
him,  and  he  is  the  real  owner  of  the  property.  Creveling  v.  Fritts,  supra.  But 
where  a  trustee  sold  trust  property  at  public  auction,  and  did  not  then  contem- 
l)late  buying  it  himself,  but  years  afterwards,  and  after  his  trust  duty  was  at  an 
end,  bought  the  property  at  a  fair  price,  and  the  whole  transaction  was  perfectly 
fair  and  honest,  it  was  held  that  the  original  sale  was  valid.  Stephen  v.  Beall,  22 
Wall.  329.  See  Downes  i".  Grazebrook,  3  Meriv.  200,  as  to  purchase  by  solicitor  of 
trustee.  Hofl'man  Steam,  etc.  Co.  v.  Cumberland  Coal,  etc.  Co.,  16  Md.  507  ;  Fair- 
man  V.  Bavin,  29  III.  76  ;  Gardner  v.  Ogden,  22  N.  Y.  327,  where  the  doctrine  was 
extended  to  the  clerk  of  the  broker  employed  to  sell  land. 

2  Charles  v.  Dubose,  29  Ala.  367  ;  Creveling  v.  Fritts,  34  N.  J.  Eq.  134  ;  Bel- 
lamy V.  Bellamy,  6  Fla.  62  ;  Hoffman  Steam,  etc.  Co.  v.  Cumberland  Coal,  etc. 
Co.,  16  Md.  508,  extended  to  every  one  in  a  fiduciary  character.  Baldwin  i;.  Alli- 
son, 4  Minn.  25  ;  1  White  &  Tud.  Lead.  Cas.  105.  And  the  beneficiaries  may 
avoid  the  sale,  although  it  was  beneficial  to  the  estate  ;  but  this  is  only  true  when 
all  the  beneficiaries  are  living  and  sui  juris.  If  there  are  future  and  contingent 
interests,  they  must  be  protected  either  by  a  trustee  or  guardian  ad  litem.  Morse 
V.  Hill,  136  Mass.  60. 

3  Dodge  V.  Stevens,  94  N.  Y.  209  ;  Union  Slate  Co.  v.  Tilton,  69  Me.  244  ;  Mo- 
Nish  V.  Pope,  8  Rich.  Eq.  112;  Huffw.  Earl,  3  Ind.  306;  Baldwin  v.  Allison, 
4  Minn.  25  ;  Rice  v.  Cleghorn,  21  Ind.  80 ;  Stephen  v.  Beall,  22  Wall.  329.  If 
two  parcels  of  land  are  thus  bought  by  the  trustee,  the  cestui  may  confirm  as  to  one 
and  avoid  as  to  the  other.  So  if  there  are  several  ccstuis,  and  part  wish  to  confirm 
and  part  to  avoid  the  sale,  they  may  do  so  if  their  interests  are  separable  ;  if  not, 
either  the  sale  must  be  wholly  avoided,  or  the  court  will  proceed  as  it  deems  most 
for  the  benefit  of  the  trust.  If  the  ccstuis  insist  upon  avoiding  the  sale,  they  may 
have  a  reconveyance  from  the  purchasing  trustee  or  from  any  one  who  purchases 
from  him  with  notice  or  knowledge  that  the  trustee  sold  to  himself ;  but  if  the 
property  has  come  into  the  ownership  of  a  person  who  paid  a  valuable  considera- 
tion, and  had  no  notice  of  the  sale  by  the  trustee  to  himself,  such  a  purchaser  will 
hold  the  property,  and  the  cestids  can  have  only  the  proceeds  of  the  sale.  If  there 
is  a  reconveyance,  the  purchase-money  must  be  refunded  by  the  estate,  with  in- 
terest, and  if  there  has  been  no  actual  fraud,  permanent  improvements  must  be 
paid  for,  but  the  purchaser  must  account  for  the  rents  and  profits.     If  the  prop- 


446  TRUSTS. 

cestui  que  triist,  if  done  with  a  full  knowledge  of  the  facts,  and 
also  of  the  law  applicable  to  these  facts.^  But  a  forbearance 
on  the  part  of  the  cestui  que  trust  to  disturb  the  purchaser's 
title,  within  a  reasonable  time  after  notice  of  the  facts,  has 
sometimes  been  held  to  be  equivalent  to  a  ratification.^ 

§  1433.  Trustee  may  buy  from  Cestui  que  Trust.  —  But  while 
the  proposition  is  all  but  universal,  that  a  trustee  who  pur- 
chases or  procures  another  to  purchase  trust  property  at  his 
own  sale  thereof  holds  it  subject  to  the  original  trust,^  he  may, 
if  acting  bona  fide,  purchase  the  same  of  the  cestui  que  trust, 
and  thereby  acquire  a  good  title. ^ 

§  1434.  Land  purchased  with  Trust  Funds.  —  So  if  a  trustee 
buy  lands  with  trust-money  in  his  own  name,  a  trust  will  arise 
in  favor  of  him  for  whom  he  held  the  trust-fund  at  his  election, 
and  parol  evidence  is  competent  to  show  the  fact  that  the  pur- 
chase was  made  with  trust-money.^     The  right  of  the  cestui  que 

erty  is  still  in  the  hands  of  the  trustee,  the  cestuis  may  compel  him  to  account 
for  the  value  at  the  time  of  the  sale.  If  the  cestuis  cannot  agree  to  avoid  the  sale, 
and  their  interests  are  not  separable,  the  court  may  affirm  the  sale  if  the  circum- 
stances render  such  action  equitable.  Thus  where  the  property  was  a  part  of  a 
leasehold  interest  which  would  decline  in  value  yearly,  and  there  was  no  actual 
fraud,  and  there  were  interests  of  unborn  children,  and  the  complaining  cestuis  had 
allowed  considerable  time  to  elapse  before  trying  to  avoid  the  sale,  and  innocent 
parties  had  acquired  rights  for  valuable  considerations,  under  a  power  of  sale  ex- 
empting them  from  seeing  to  the  application  of  the  purchase-money,  it  was  held 
that  the  trustees  might  retain  the  property  on  paying  the  difference  between  the 
actual  price  paid  and  what  the  property  was  reasonably  worth  at  the  time  of  the 
sale,  with  interest  at  six  per  cent,  with  annual  rests,  and  that  if  the  trustees  did 
not  choose  to  do  this,  they  must  reconvey.     Morse  v.  Hill,  136  Mass.  60. 

^  Hoffman  Steam,  etc.  Co.  v.  Cumberland  Coal,  etc.  Co.,  supra  ;  Lewin,  Trusts, 
651. 

2  Jennison  v.  Hapgood,  7  Pick.  1,  8  ;  Mitchell  v.  Berry,  1  Met.  (Ky.)  602  ;  Ives 
V.  Ashley,  97  Mass.  204  ;  Morse  v.  Hill,  136  Mass.  60. 

8  Herr's  Estate,  1  Grant's  Cas.  272. 

*  Sallee  v.  Chandler,  26  Mo.  124  ;  Ex  parte  Lacey,  6  Ves.  625  ;  Downes  v.  Graze- 
brook,  3  Meriv.  208,  note;  Richardson  v.  Spencer,  18  B.  Mon.  450. 

5  Deg  V.  Deg,  2  P.  Wms.  412;  Laussat,  Fonbl.  Eq.  119,  note  ;  Philips  f.  Cram- 
mond,  2  Wash.  C.  C.  441  ;  Wallace  v.  Duffield,  2  Serg.  &  K.  521  ;  Methodist 
Church  V.  Wood,  5  Ohio,  283 ;  1  Cruise,  Dig.  393  ;  Turner  v.  Petigrew,  6  Humph. 
438.  And  this  extends  to  all  cases  where  one  purchases  lands  with  another's  money, 
and  takes  the  deed  to  himself.  There  is  in  such  case  a  trust  in  favor  of  the  owner 
of  the  money.  Foote  v.  Colvin,  3  Johns.  216  ;  Brown  v.  Weast,  7  How.  (Miss.) 
181  ;  Thomas  v.  Walker,  6  Humph.  93  ;  Mnrdock  v.  Hughes,  7  Sm.  &  M.  219  ; 
Williams  v.  Turner,  7  Ga.  348 ;  Lane  v.  Dighton,  Ambl.   413  ;  Prevost  v.  Gratz, 


CLASSIFICATION    OF    TRUSTS.  447 

trust  in  such  a  case  is  to  the  land  itself,  and  not  merely  to 
a  lien  upon  it  as  security  for  the  trust-money.^ 

§  1435.  Purchase  of  Trust  Property  in  Fraud  of  Trust.  — 
So  if  one  purchase  from  a  trustee,  with  knowledge  actual  or 
constructive  of  the  trust,  he  becomes  himself  the  trustee  of  the 
property.^  And  the  same  rule  applies  to  the  sale  of  trust 
property  upon  execution  for  the  debt  of  the  trustee  :  if  the 
purchaser  know  the  fact,  he  will  be  held  to  execute  the  trust.^ 
But  if  the  purchaser  be  ignorant  of  this,  and  pay  a  valuable 
consideration  for  the  estate,  he  will  hold  it  discharged  of  the 
trust.*  It  would  be  otherwise  if  he  pay  no  consideration,  as  he 
would  have  no  equity  to  set  up  against  the  claim  of  the  origi- 
nal cestui  que  trustJ'  And  a  mortgagee  without  notice  will 
hold  as  against  a  cestui  que  trust.^     But  this  docs  not  extend 

1  Peters,  C.  C.  364  ;  Piatt  v.  Oliver,  2  M'Lean,  C.  C.  313  ;  Pugh  v.   Pugh,  9  lud. 
132  ;  Barker  v.  Barker,  14  Wis.  146. 

1  Wilkinson  v.  Wilkinson,  1  Head,  305  ;  McCrory  v.  Foster,  1  Iowa,  276. 

2  Sadler's  App.,  87  Penn.  St.  154;  Thompson  v.  Wheatley,  5  Sm.  &  M.  499  ; 
Pinson  v.  Ivey,  1  Yerg.  338 ;  1  Spence,  Eq.  Jur.  512  ;  Saunders  v.  Deliew,  2  Vern. 
271 ;  2  Flint.  Real  Prop.  770,  772,  787  ;  Fearne,  Cont.  Rem.  325  ;  Willis,  Trust. 
64  ;  Stewart  v.  Chadwick,  8  Iowa,  463 ;  Carvagnaro  v.  Don,  63  Cal.  227  ;  Cain  v. 
Cox,  23  W.  Va.  594.  And  this  is  true  of  resulting  trusts  as  well  as  express  trusts. 
Ferrin  v.  Errol,  59  N.  H.  234.  See  n\so  post,  §  1483.  It  is  not  necessary  to  show 
actual  knowledge  or  notice.  In  many  cases  constructive  notice  is  enough.  Thus  it 
is  held  that  if  a  deed  is  recorded  in  the  registry  of  deeds,  it  is  constructive  notice  to 
all  subsequent  purchasers  of  its  contents.  Abell  v.  Brown,  55  Md.  222.  And  in 
general,  whatever  fact  is  sufficient  to  put  a  reasonably  careful  man  upon  inquiry 
which  would  lead  him  to  a  knowledge  of  the  trust,  is  notice  to  him  of  that  trust. 
Ibid.  Possession  of  the  land  by  one  who  is  not  the  record  owner  has  been  held  to 
be  notice  of  a  trust.  Ferrin  v.  Errol,  59  N.  H.  234.  Cf.  Conover  v.  Beckett, 
38  N.  J.  Eq.  394 ;  Cain  v.  Cox,  23  W.  Va.  594. 

8  Fillman  v.  Divers,  31  Penn.  St.  429. 

<  Sadler's  App.,  87  Penn.  St.  154  ;  Rogers  v.  Rogers,  53  Wis.  36 ;  Cain  i*.  Cox, 
23  W.  Va.  594.  If  a  father  mortgages  land  to  his  son,  and  then  by  foreclosure 
proceedings,  apparently  adverse  but  really  begun  at  the  father's  request  and  ex- 
pense, the  son  acquires  the  whole  legal  title,  but  upon  a  secret  trust  for  the  father, 
and  the  father  allows  the  son  to  deal  with  the  property  as  his  own  for  years,  and  in 
fact  never  discloses  the  existence  of  the  trust  till  after  creditors  of  the  son  have 
seized  the  land  for  his  debt  and  sold  it  to  a  purchaser  who  had  no  notice  of  the 
trust  for  a  valuable  consideration,  the  trust  is  barred  and  the  purchaser  of  the  land 
will  hold  it.      Conover  v.  Beckett,  38  N.  J.  Eq.  384. 

5  2  Flint.  Real  Prop.  770,  772  ;  Co.  Lit.  290  b,  note  249,  §  3  ;  Searcy  v.  Rear- 
don,  1  A.  K.  Marsh.  1:  Paul  v.  Fulton,  25  Mo.  156  ;  Lyford  v.  Thurston,  16  N.  H. 
408  ;  Hopkinson  v.  Dumns,  42  N.  H.  304  ;  Sadler's  App.,  87  Penn.  St.  154. 

6  Newton  v.  McLean,  41  Barb.  285. 


448  TRUSTS. 

to  the  interest  which  a  husband  acquires  in  his  wife's  land 
upon  marriage.  He  would  not  take  the  land  which  she  held 
as  trustee,  discharged  of  trust,  though  he  was  ignorant  of  its 
existence  when  he  married  her.  He  would  join  with  her  as 
trustee,  unless  she  were  capable  of  acting  as  such  by  herself, 
as  she  may  be  in  some  of  the  States.^  So  if  a  creditor  levy 
upon  a  trust-estate  of  which  his  debtor  is  trustee,  he  will  not 
be  permitted  to  hold  the  same  as  against  the  cestui  que 
trust,  although  when  he  levied  upon  the  land  he  was  ignorant 
of  the  trust/-^  But  if  one,  having  notice  of  the  trust,  purchase 
of  one  who  had  no  notice  thereof  when  he  bought  the  estate, 
he  will  hold  it  discharged  of  the  trust  in  the  same  way  as  his 
vendor  held  it ;  and  the  same  would  be  the  rule  if  a  purchaser 
without  notice  were  to  buy  of  one  who  had  purchased  of 
the  trustee  with  notice  of  the  trust.^  But  if  an  original 
purchaser  with  notice  buys  of  one  who  had  purchased  the 
estate  without  notice,  he  will  hold  it  subject  to  the  original 
trust.* 

§  1436.  statute  of  Frauds  no  Defence  against  Fraud.  —  It  has 
already  been  stated,  that  by  the  statute  of  frauds  no  trust 
can  be  raised  by  a  mere  agreement  as  to  the  sale  of  lands, 
unless  the  same  is  in  writing ;  yet  if  a  purchaser  has  been 
prevented  from  having  such  agreement  when  made  put  into 
writing  by  the  fraud  of  the  vendor,  or  the  contract  has  been  car- 
ried partly  into  execution,  equity  will  hold  the  vendor  a  trustee 
for  the  purchaser,  and  will  not  allow  him  to  invade  his  agree- 
ment.    To  determine,  however,  what  would  be  sufficient  part 

1  Claussen  v.  La  Franz,  1  Iowa,  236,  237  ;  Hill,  Trust.  287  and  note  ;  Palmer 
V.  Oakley,  2  Doug.  (Mich.)  433  ;  ante,  §  1425.  See  Perry  on  Trusts,  §§  48-51,  as 
to  when  femes  covert  may  be  trustees.  So  where  a  married  woman  procured  an 
absolute  devise  to  her  of  her  husband's  property,  by  an  oral  promise  to  hold  it  for 
the  support  of  herself  and  the  children,  and  to  convey  to  them  all  she  did  not  so 
use,  and  after  his  death  she  married  again  and  devised  the  property  to  her  second 
husband,  it  was  held  that  the  children  of  the  first  husband  might  bring  a  bill  in 
equity  against  the  second  husband  for  a  reconveyance  of  the  real  estate.  Socher's 
App.,  104  Penn.  St.  609. 

2  Shryock  v.  Waggoner,  28  Penn.  St.  430. 

3  Willis,  Trust.  66  ;  Liiussat,  Foubl.  Eq.  146,  note  ;  Bumpus  i;.  Platner, 
1  Johns.  Ch.  213  ;  Boone  v.  Chiles,  10  Pet.  177  ;  Hoffman  Steam,  etc.  Co.  v.  Cum- 
berland Coal,  etc.  Co.,  16  Md.  456. 

4  Church  V.  Church,  25  Penn.  St.  278. 


CLASSIFICATION    OF    TRUSTS.  449 

performance  to  take  the  case  out  of  tlie  statute  of  frauds, 
would  open  too  wide  a  door  for  inquiry  in  this  place.^ 

§  1437.  Devise  obtained  by  Promise  to  hold  in  Trust.  —  And 
if  a  grantee  or  devisee  obtain  a  deed  or  devise  by  means  of 
promises  to  hold  the  land  for  another,  this  is  sufficient  to 
raise  a  trust  in  favor  of  the  latter  on  the  ground  of  fraud,  and 
this  may  be  proved  by  parol. ^ 

§  1438.  Trusts  of  Terms  for  Years  are  not  executed  by  the 
statute  of  uses.  Thus  where  A,  possessed  of  a  term  for  years, 
limits  it  to  B  to  the  use  of  C,  it  is  not  a  use  which  the  statute 
executes,  for  there  is  no  seisin  to  which  to  unite  the  use,  and 
therefore  B  holds  simply  in  trust  for  C,  the  interest  being 
termed  a  trust  instead  of  a  use.  And  the  remedy  for  the 
cestui  que  trust,  like  that  of  a  cestui  que  use,  must  be  sought  in 
chancery.^ 

§  1439.  Executory  and  Executed  Trusts,  —  Trusts  are  some- 
times divided  into  executory  and  executed.  This  is  not  in  the 
sense  that  a  use  is  executed  when  the  seisin  and  uses  are 
united  in  the  cestui  que  use,  but  it  is  applied  to  the  character 
of  the  trust  itself,  and  assumes  that  there  is  a  cestui  que  trust 
whose  interest  is  equitable  only,  distinct  from,  and  not  to  be 
united  with,  the  legal  estate.  "  An  executory  trust  merely 
declares  a  general  plan  or  outline  to  be  carried  out  in  de- 
tail according  to  the  apparent  intention  of  the  creator  of  the 
trust.  Executed  is  a  final  and  complete  declaration  by  the 
person  raising  the  trust  of  what  it  is,  and  leaving  nothing  for 
the  trustee  to  do  to  define  and  settle  it."  '^     Lord  St.  Leonards 

1  2  Flint,  Real  Prop.  814  ;  Sample  v.  Coulson,  9  Watts  &  S.  62 ;  Conuer  v. 
Lewis,  16  Me.  268. 

2  Hoge  V.  Hoge,  1  Watts,  163  ;  Fox  v.  Fox,  88  Penn,  St.  19;  Socher's  App., 
104  Pemi.  St.  609  ;  O'Hara  v.  Dudley,  95  N.  Y.  403 ;  Dowd  v.  Tucker,  41  Conn. 
198;  Oliffe  u.  Wells,  130  Mass.  224.  If  there  is  no  such  promise  made  by  the 
devisee,  but  at  the  time  of  making  the  devise  the  testator  expresses  to  a  third  per- 
son the  wish  that  the  devise  .should  be  held  on  certain  trusts,  and  after  the  testator's 
death  this  third  person  tells  the  devisee  of  such  wish,  and  the  devisee  agrees  to  hold 
the  property  upon  these  trusts,  yet  this  does  not  bind  the  devisee,  and  no  trust  is 
created.     Schultz's  App.,  80  Penn.  St.  396. 

8  2  Flint.  Real  Prop.  630,  788  ;  1  Prest.  Abat.  140  ;  Warner  v.  Sprigg,  62 
Md.  14. 

*  Saunders  v.  Edwards,   2  Jones  (X.   C.)   Eq.   134,      See  Willis,   Trusts,  29  ; 
1  Cruise,  Dig.  403 ;  Porter  v.  Doby,  2  Rich.  Ecj.  49  ;  Tud.  Lead.  Cas.  503  ;   Evans 
I'.  King,  3  Jones  (N.  C.)  Eq.  387. 
VOL.  II.  —  29 


450  TRUSTS. 

thus  distinguishes  between  the  two :  "  All  trusts  are  in  a  sense 
executory,  because  a  trust  cannot  be  executed  except  by  con- 
veyance, and  therefore  there  is  always  something  to  be  done. 
But  that  is  not  the  sense  in  which  a  court  of  equity  considers 
an  executory  trust,  as  distinguished  from  a  trust  executing 
itself."  1  And  Ames,  C.  J.,  in  commenting  on  the  above 
remarks,  says  :  "  A  trust  for  B  in  fee,  and  a  trust  to  convey  to 
B  in  fee,  cannot  be  substantially  distinguished.  Both  are 
quite  distinct  from  a  direction  to  trustees  to  make  such  a 
settlement  of  an  estate  as  would  best  insure  the  continuance 
of  the  estate  in  him  and  his  children.  In  the  former  case 
the  limitations  are  perfect ;  in  the  latter  they  are  yet  to  be 
made.  In  the  former  the  trusts  are  said  to  be  executed,  in  the 
sense  of  being  definite,  or  completely  marked  out ;  in  the  latter 
case  executory,  since  no  mode  of  settlement  is  prescribed,  but 
merely  the  intent  or  purpose  of  the  creator  of  the  trust  to  be 
carried  out  by  a  settlement  to  be  made  by  the  trustee."  ^ 

§  1440.  The  Estate  of  the  Trustee,  being  a  legal  one,  derives 
its  character  and  qualities  from  the  common  law,  and  is  the 
only  estate  known  to  or  recognized  by  the  courts  of  law.^  It 
may  be  created  or  conveyed,  as  an  estate  of  inheritance  or  any 
less  estate,  in  severalty  or  in  joint-tenancy,*  in  possession  or 
remainder,  and  descends  as  any  other  legal  estate.^  A  trustee 
may  convey  his  legal  estate  himself,  or  by  attorney.^  So  he 
may  devise  it  by  general  words  in  his  will,''  though  such  an 

1  Egerton  v.  Brownlow,  4  H.  L.  Cas.  210.  A  direction  in  a  trust  that  the  trus- 
tee shall,  upon  the  termination  of  the  trust,  convey  to  certaia  persons  in  fee,  does 
not  make  the  trust  an  executory  one.  Gushing  v.  Blake,  30  N.  J.  Eq.  689.  An 
important  application  of  this  distinction  arises  where  the  words  of  the  trust  are  to 
one  for  his  life  and  remainder  to  his  heirs,  involving  the  rule  in  Shelley's  case.  See 
post,  §  1443. 

2  Tillinghast  v.  Coggeshall,  7  R.  I.  393  ;  Neves  v.  Scott,  9  How.  211  ;  Hill, 
Trustees,  328. 

8  Wms.  Real  Prop.  135 ;  Hill,  Trust.  274  and  note. 

*  In  Massachusetts  every  conveyance  of  land  to  two  or  more  is  presumed  to  cre- 
ate a  tenancy  in  common,  unless  a  joint  tenancy  is  specified  ;  but  conveyances  to 
trustees  are  not  so  presumed,  but  are  left  as  at  common  law.  Pub.  Stat.  c.  126, 
§§  4,  5. 

6  2  Flint.  Real  Prop.  770  ;  Co.  Lit.  290  b,  note  249,  §  14. 

6  Telford  v.  Barney,  1  Greene  (Iowa),  575. 

^  Jackson  d.  Livingston  v.  DeLancy,  13  Johns.  555;  Braybroke  v.  Inskip, 
8  Ves.  417. 


CLASSIFICATION    OP   TRUSTS.  451 

estate  is  not  subject  to  execution  for  the  debt  of  the  trustee,^ 
nor  can  he  encumber  it  even  for  the  payment  of  the  purchase- 
money.''^ 

§  1441.  The  Interest  of  the  Cestui  que  Trust  is  generally  called 
a  trust,  and  derives  its  character  and  qualities  from  rules 
adopted  by  courts  of  equity.  But  these  were  conformed,  as 
nearly  as  could  be,  to  the  rules  of  the  common  law  which  gov- 
ern legal  estates.^  Thus,  it  is  said,  "  the  equitable  estate  is 
the  estate  at  law  in  a  court  of  equity,  and  is  governed  by  the 
same  rules  in  general  as  all  real  property  is,  by  imitation. 
The  equitable  estate  in  this  court  is  the  same  as  the  land,  and 
the  trustee  is  considered  as  a  mere  instrument  of  convey- 
ance." *  And  "  that  trusts  and  legal  estates  are  governed  by 
the  same  rules,  is  a  maxim  which  has  obtained  universally."  ^ 
It  has  accordingly  been  held,  that,  "  in  construing  limitations 
of  trusts,  courts  of  equity  adopt  the  rules  of  law  applicable  to 
the  legal  estate."  "  Declarations  of  trust  are  construed  in  the 
same  manner  as  common  law  conveyances,  where  the  estate  is 
finally  limited  by  deed."  •* 

§  1442.  Both  Estates  governed  by  same  General  Rules.  —  A 
trust  estate  is  considered  in  equity  as  equivalent  to  the  legal 
ownership,  governed  in  general  by  the  same  rules  and  liable  to 
every  charge  in  equity,  formerly  with  the  exception  of  dower, 
and  to  every  consequence,  except  escheat,  to  which  the  other  is 
subject  at  law.'^  The  cestui  que  trust  is  seised  absolutely  of  the 
freehold  in  the  consideration  of  the  court  of  equity.  The  trust 
is  the  land.  The  declaration  of  the  trust  is  the  disposition  of 
the  land.^     Thus  a  trust  in  favor  of  A  for  life,  or  of  him  and 

1  Bostick  V.  Keizer,  4  J.  J.  Marsh.  597  ;  Williams  v.  FuUertou,  20  Vt.  346. 

2  Wilhelm  v.  Folmer,  6  Penn.  St.  296. 

8  Wrus.  Real  Prop.  136  ;  Co.  Lit.  290  b,  note  249,  §  14;  Willis,  Trust.  107. 

*  Cholmondeley  v.  Clinton,  2  Jac.  &  W.  148. 

6  Banks  v.  Sutton,  2  P.  Wins.  713,  by  Jekyll.  See  2  Flint.  Real  Prop.  631  ; 
2  Spence,  Eq.  .Tur.  875 ;  Sand.  Uses,  269. 

6  Price  V.  Sisson,  13  N.  J.  Eq.  174,  179  ;  Glenorchy  v.  Bosville,  Cas.  temp. 
Talbot,  3,  19. 

^  2  Flint.  Real  Prop.  631 ;  1  Prest.  Est.  189  ;  1  Prest.  Abst.  136  ;  Willis,  Trust. 
25,  26,  105  ;  Wms.  Real  Prop.  135  ;  1  Spence,  Eq.  Jur.  497;  Cashing  v.  Blake,  30 
N.  J.  Eq.  689. 

8  Burgess  v.  Wheate,  1  Eden,  223  ;  Co.  Lit.  290  b,  note  249,  §  12 ;  Croxall  v. 
Shererd,  5  Wall.  281. 


452  TRUSTS. 

the  heirs  of  his  body,  or  of  him  and  his  heirs,  gives  him  the 
same  equitable  estate  that  these  words  would  give  had  they 
been  applied  to  the  legal  estate.^ 

§  1443.  Rule  in  Shelley's  Case.  —  There  is  a  principle  of  the 
common  law  in  force  in  England  and  several  of  the  United 
States,  called  the  rule  in  Shelley's  case,  whereby  if  an  estate  is 
given  to  one  for  life,  and  then  to  his  heirs  or  the  heirs  of  his 
body,  or  with  a  remainder  to  such  heirs,  it  is  construed  to  be  an 
estate  in  fee-simple  or  fee-tail  in  him,  and  the  heirs,  if  they  take 
at  all,  take  by  descent,  and  not  by  purchase.  And  this  rule  ap- 
plies alike  to  equitable  as  to  legal  estates,  in  case  of  executed 
trusts.^  But  it  does  not  apply  in  respect  to  executory  trusts, 
especially  trusts  in  marriage  settlements,  nor  in  any  case  where 
it  is  intended  that  the  tenant  for  life  shall  not  have  a  right  to 
cut  off  the  estate  in  remainder.^ 

§  1444.  Rules  of  Descent,  Transmission,  etc.  —  The  equitable 
estates  spoken  of  in  this  chapter  follow  the  rules  of  legal  es- 
tates as  to  their  descent,'^  and  may  be  devised  in  the  same 
manner  as  legal  estates,  and  if  it  be  an  estate-tail,  it  can 
be  barred  in  the  same  manner  as  legal  estates.^ 

§  1445.  How  far  Equitable  Estates  are  liable  for  Debts.  —  In 
England,  equitable  estates  are  made  subject  to  the  debts  of  the 
cestui  que  trust  by  force  of  statutes  to  that  effect,  though  not 

1  Wms.   Eeal  Prop.   136  ;  Sand.  Uses,  269  ;  Co.   Lit.  290  6,   note  249,   §  14; 

I  Prest.   Abst.  144. 

2  Wms.  Eeal  Prop.  136  ;  Tud.  Lead.  Cas.  503  ;  1  Spence,  Eq.  Jur.  503  ;  Til- 
linghast  i'.  Coggeshall,  7  R.  L  383  ;  Croxall  v.  Shererd,  5  Wall.  281  ;  Cashing  v. 
Blake,  30  IST.  J.  Eq.  689.     See^josi;,  "  Rule  in  Shelley's  Case." 

3  Berry  v.  Williamson,  11  B.  Mon.  245  ;    Tud.   Lead.  Cas.  504  ;   Gill  v.  Logan, 

II  B.  Mon.  231  ;  Cushing  v.  Blake,  30  N.  J.  Ei\.  689.  Where  the  trust  is  definite 
and  precise,  a  direction  to  the  trustee  to  convey  to  certain  persons  upon  the  termi- 
nation of  the  trust  does  not  give  the  trust  such  an  e-xecutor}'  character  as  to  pre- 
vent the  operation  of  the  rule  in  Shelley's  case.  Ibid.  Nor  does  a  power  of  appoint- 
ment in  the  life  tenant.  Brown  v.  Renshaw,  57  Md.  67.  That  rule  applies  to 
marriage  settlements  which  are  definite  and  precise  in  their  limitations,  but  not  to 
such  as  are  mere  heads  or  minutes  for  another  and  final  settlement.  Cushing  v. 
Blake,  supra  ;  Petition  of  Angell,  13  R.  I.  630.  In  States  where  statute  has  abol- 
ished the  rule  in  Shelley's  case,  a  question  of  construction  arises,  and  it  is  for  the 
court  to  say  what  the  limitation  is.     Davis  v.  Hardin,  80  Ky.  672. 

*  Wms.  Real  Prop.  139 ;  1  Spence,  Eq.  Jur.  502  ;  2  Flint.  Real  Prop.  631,  781  ; 
Co.  Lit.  290  b,  note  249,  §  14  ;  Bush's  Appeal,  33  Penn.  St.  88  ;  Newhall  v.  Wheeler, 
7  Mass.  189 ;  Cushing  v.  Blake,  30  N.  J.  Eq.  689. 

s  Cro.xall  v.  Shererd,  5  Wall.  281. 


CLASSIFICATION    OF    TRUSTS.  453 

originally  so  liable.^  But  the  bankruptcy  or  insolvency  of  a 
trustee  docs  not,  either  there  or  in  this  country,  affect  the  legal 
estate  in  his  hands.^  The  interest  of  a  bankrupt  trustee  does 
not  pass  to  his  assignee  under  the  law  of  the  United  States.^ 
The  laws  of  the  States  as  to  the  liability  of  the  interest  of  the 
cestui  que  trust  for  his  debts,  while  not  strictly  uniform,  gen- 
erally agree  with  the  English  decisions  in  holding  such  interest 
to  be  liable  where  the  trust  provides  for  an  absolute  payment 
of  the  income  by  the  trustee  to  the  cestui,  without  discretion  on 
the  part  of  the  trustee.  The  cestui  could  enforce  this  payment, 
and  his  creditors  may  reach  it  for  the  payment  of  their  debts.* 
This  interest  cannot  generally  be  taken  on  attachment,^  but 
may  be  reached  by  a  bill  in  equity.^ 

§  1446.  May  the  Donor  exempt  the  Equitable  Estate  from  Lia- 
bility for  Debts  ?  —  The  English  rule  is  that  no  provision  can  be 
made  to  accomplish  this,  unless  it  terminates  the  interest  of  the 
cestui  upon  his  bankruptcy  or  upon  his  alienation  of  the  inter- 
est.''' And  the  rule  obtains  in  many  of  the  United  States,  that 
the  cestuVs  interest  cannot  be  exempted  from  liability  for  his 
debts.^  But  in  others  it  is  held  that  if  the  grantor  expressly 
provides  that  the  interest  granted  to  the  cestui  shall  not  be  sub- 
ject to  his  debts  nor  alienable  by  him,  the  interest  of  the  cestui 
cannot  be  reached  by  his  creditors  in  any  way,  although  there 
is  no  provision  for  the  cessation  of  the  payments  of  the  income 

1  Willis,  Trust.  115,  116  ;  1  Prest.  Est.  144  ;  AVms.  Real  Prop.  140  ;  2  Flint. 
Real  Prop.  631,  771. 

2  Wnis,  Real  Prop.  141;  Hill,  Tru.st,  530  ;  Bliu  v.  Pierce,  20  Vt.  25  ;  Hynson 
V.  Burton,  5  Ark.  492 ;  Ontario  Bank  v.  Mumford,  2  Barb.  Ch.  616 ;  Kip  v.  Bank 
of  New  York,  10  Johns.  63  ;  Kennedy  v.  Strong,  id.  289  ;  Clarke  v.  Minot,  4  Met. 
346. 

3  Faxon  v.  Foley,  110  Mass.  395. 

*  Foote  V.  Colvin,  3  Johns.  216  ;  Jackson  d.  Ten  Eyck  v.  Walker,  4  Wend. 
462;  Daniels  v.  Eldridge,  125  Mass,  356;  Clapp  v.  Ingraham,  126  id.  200  ;  Hall 
V.  Williams,  120  id.  344  ;  Lyford  v.  Thurston,  16  N.  H.  408  ;  Hutchins  v.  Hey- 
wood,  50  N.  H.  491  ;  Johnson  v.  Conn.  Bank,  21  Conn.  159  ;  Easterly  v.  Kenej^, 
36  Conn.  18;  Bush's  App.,  33  Penn.  St.  85. 

5  Hogan  V.  Jaques,  19  N.  J.  Eq.  123. 

^  Hall  V.  Williams,  supra,  and  the  cases  in  note  4,  supra. 

''  Brandon  v.  Robinson,  18  Ves.  429  ;  Rochford  v.  Hackman,  9  Hare,  475  ; 
Trappes  v.  Meredith,  L.  R.  9  Eq.  229. 

8  Smith  V.  Moore,  37  Ala.  327  ;  Mcllvaine  v.  Smith,  42  Mo.. 45  ;  Mebane  v. 
Mebane,  4  Ired.  Ec^.  131  ;  Dick  v.  Pitchford,  1  Dev.  &  Bat.  Eq.  480  ;  Heath  v. 
Bishop,  4  Rich.  Eq.  46  ;    Tillinghast  v.  Bradford,  5  R.  I.  205. 


454  TRUSTS. 

to  the  cestui,  provided  the  cestui'' s  estate  is  of  such  a  nature  that  a 
condition  in  restraint  of  alienation  is  good,  i.  e.  if  it  is  not  a  fee.^ 
Where  the  trust  is  so  worded  that  it  is  discretionary  with  the 
trustee  to  pay  any  of  the  income  to  the  cestui,  the  cestui  has  no 
claim  upon  the  income  which  he  can  enforce,  and  of  course  his 
creditors  stand  in  no  better  position,  and  cannot  in  any  way 
reach  the  trust  fund.^  Thus,  where  the  trust  was  to  one  for 
his  life,  with  a  provision  that  it  should  cease  upon  his  bank- 
ruptcy, and  a  further  provision  that,  after  such  cessation,  it 
should  be  lawful,  but  not  obligatory  on  the  trustees,  to  pay  to 
the  bankrupt  or  to  apply  to  the  use  of  his  family  such  and  so 
much  of  said  income  as  the  cestui  would  have  been  entitled  to, 
in  case  the  forfeiture  had  not  happened,  it  was  held,  that  as  the 
bankrupt  had  no  right  to  enforce  the  payment  of  any  income, 
his  creditors  could  not  claim  anything  under  the  trust.^  In 
this  case,  the  court  cites  the  remark  of  Lord  Eldon  in  Brandon 
V.  Robinson,^  that  if  property  is  given  to  a  man  for  his  life,  the 
donor  cannot  take  away  the  incidents  of  a  life  estate,  and  com- 
bats it,  saying  that  the  power  of  alienation  is  not  a  necessary 
incident  to  a  life  estate,  and  that  the  rents  and  profits  of  real 
property  may  be  enjoyed  without  liability  of  its  being  taken  for 
his  debt.^ 

§1447.  Rule  against  Perpetuities  applied.  —  Springing,  shift- 
ing, and  future  trusts  of  every  kind,  of  the  nature  of  springing 
and  shifting  uses,  hereafter  to  be  considered,  are  allowed.  But 
the  same  rule  against  perpetuities  applies  to  trusts  which  is 
applied  to  legal  estates.  To  be  valid,  they  must  be  so  limited 
as  to  be  sure  to  vest  in  a  cestui  que  trust,  if  at  all,  within  the 
period  of  a  life  or  lives  in  being,  and  twenty-one  years  and  a 
fraction  after.^ 

1  Broadway  Nat.  Bank  v.  Adams,  133  Mass.  170  ;  Nichols  v.  Eaton,  91  U.  S. 
716  ;  Norris  v.  Johnston,  5  Penn.  St.  287;  Vaux  v.  Parke,  7  Watts  &  S.  19;  Hold- 
ship  u.  Patterson,  7  Watts,  547;  Shankland's  Appeal,  47  Penn.  St.  113;  Rife  v. 
Geyer,  59  Penn.  St.  393  ;  AVhite  v.  White,  30  Vt.  338 ;  Pope  v.  Elliott,  8  B.  Mon. 
56 ;  Arnwine  v.  Carroll,  4  Halst.  Ch.  620,  625  ;   Spindle  v.  Shreve,  9  Biss.  C.  C.  199. 

2  Nichols  I'.  Eaton,  91  U.  S.  716  ;  Hall  v.  Williams,  120  Mass.  344  ;  Banfield 
V.  Wiggins,  58  N.  H.  155  ;  Davidson  v.  Kemper,  79  Ky.  5. 

8  Nichols  V.  Eaton,  91  U.  S.  716. 
*  18  Ves.  433. 

5  See  also  Broadway  Nat.  Bank  v.  Adams,  supra. 

6  1  Spence,   Eq.  Jur.  500,  503;   1  Pi  est.  Abst.  145;   Co.  Lit.  290  6,  note  249, 


CLASSIFICATION    OF   TRUSTS.  455 

§  1448.  statute  of  Limitations  as  applied  to  Express  Trusts. — 
From  the  nature  of  the  relation  between  the  trustee  and  cestui 
que  trust  of  an  express  trust,  no  length  of  mere  possession  or 
occupation  by  the  trustee  can  operate  as  a  bar  to  the  claim 
or  the  rights  of  the  cestui  que  trust  in  respect  to  the  estate.^ 
"  Where  there  is  no  disclaimer,  the  statute  of  limitations  has 
no  application  to  express  trusts."  ^  Trusts  which  can  be  en- 
forced only  in  a  court  of  equity,  where  the  question  is  between 
the  trustee  and  cestui  que  trust,  do  not  come  within  the  statute 
of  limitations.  But  where  the  remedy  is  at  law,  the  statute 
applies.^  If  a  trustee  sell  lands  held  in  trust,  it  amounts  to  a 
repudiation  of  the  trust,  and  the  possession  of  the  purchaser  is 
thereafter  adverse  to  the  cestui  que  trusts 

§  1449.  Statute  of  Limitations  —  Constructive  and  resulting 
Trusts.  —  But  this  principle  dues  not  apply  to  cases  of  construc- 
tive and  resulting  trusts.  The  rule  in  respect  to  these  classes 
of  trusts  is,  that  if  one,  knowing  he  could  avail  himself  of  the 
benefit  of  such  a  trust,  lies  by  for  twenty  years,  his  claim  will 
thereby  be  barred.^    But  the  statute  will  in  no  case  run  against 

§  14.    In  New  York,  the  term  of  perpetuity  is  fixed  at  two  lives  in  being  at  the 
creation  of  the  trust.     Boynton  v.  Hoyt,  1  Denio,  53. 

1  Hill,  Trust.  264  and  note ;  Lewin,  Trusts  (2d  ed.),  613 ;  Perry,  Trusts 
(3d  ed.),  §  863;  Jones  v.  McDermott,  114  Mass.  400  ;  Davis  v.  Coburn,  128  Mass. 
377  ;  Nease  v.  Capehart,  8  W.  Va.  95 ;  Frost  v.  Frost,  63  Me.  399  ;  Wormouth  v. 
Johnson,  58  Cal.  621 ;  Gardner  v.  Gardner,  6  Paige,  Ch,  455  ;  Foscue  v.  Foscue, 
2  Ired.  Eq.  321  ;  Kane  v.  Bloodgood,  7  Johns.  Ch.  123  ;  Johnston  v.  Humphreys, 
14  Serg.  &  K.  394  ;  Murdock  v.  Hughes,  7  Sin.  &  M.  219 ;  Starke  v.  Starke,  3  Rich. 
445  ;  Boone  v.  Chiles,  10  Pet.  223 ;  Fish  wick  v.  Sewell,  4  Harr.  &  J.  393  ;  Gordon 
V.  Small,  53  Md.  550 ;  McDonald  v.  Sims,  3  Ga.  383  ;  "Wilson  v.  Ely,  6  N.  J.  Eq. 
181 ;  Cunningham  v.  McKindley,  22  Ind,  151 ;  Dow  v.  Jewell,  18  N.  H.  358  ; 
post,  §  1990  et  seq.  A  direction  in  a  will  to  sell  land  for  payment  of  debts  does 
not  create  such  a  trust  in  favor  of  creditors  as  prevents  the  statute  of  limitation 
from  running  against  their  claims.     Starke  v.  Wilson,  65  Ala.  576. 

2  Perry,  Trusts  (3d  ed.),  §  864  ;  Seymour  v.  Freer,  8  Wall.  218.  But  after  any 
disclaimer,  by  unequivocal  words  or  acts  of  the  trustee,  the  statute  begins  to  run. 
Janes  v.  Throckmorton,  57  Cal.  368  ;  Milner  v.  Hylaud,  77  Ind.  458 ;  Hill  v. 
Bailey,  8  Mo.  App.  85. 

s  Governor  v.  Woodworth,  6^  111.  258. 

4  Perry,  Trusts  (3d  ed.),  §  864  ;  Peters  v.  Jones,  35  Iowa,  512. 

5  Lewin,  Trusts  (2d  ed.),  61 1  ;  Hill,  Trust.  265  ;  Perry,  Trusts  (3d  ed.),  §  865  ; 
Murdock  v.  Hughes,  7  Sm.  &  M.  219  ;  Kane  v.  Bloodgood,  7  Johns.  Ch.  120  ; 
Boone  v.  Chiles,  10  Pet.  223  ;  Willison  v.  Watkins,  3  Pet.  43,  52;  Beard  v.  Stan- 
ton, 15  S.  C.  164  ;  Weaver  v.  Leiman,  52  Md.  708  ;  Kennedy  v.  Kennedy,  25  Kan. 
151;   South  Sea  Co.  v.  Wymondsell,  3  P.  Wms.   143;  Strimpfler  v.  Roberts,   18 


456  TRUSTS. 

one  innocently  ignorant  of  his  rights,  nor  against  one  incompe- 
tent, hke  an  infant,  to  enforce  thein.^ 

§  1450.  If  the  Trustee  of  an  Express  Trust  repudiate  the  trust 
the  statute  begins  to  run  from  the  time  of  such  repudiation  if 
the  cestui  has  not  been  under  a  disability  and  no  fraud  has  been 
practised.  Thus,  where  the  trustee  has  refused  to  account  for 
rents  and  profits,  or  has  denied  the  cestui  que  trusfs  title  to 
the  estate,  his  possession  from  the  time  of  such  denial  will  be 
deemed  to  have  been  adverse,  and  the  statute  will  begin  to 
run.^  So  the  claim  of  the  cestui  que  trust  may  be  barred,  if  the 
trustee  suffers  his  legal  rights  to  be  lost  and  barred  by  neglect- 
ing to  assert  them  against  an  adverse  possession  within  the 
period  of  limitation.^ 

§  14ol.  Trusts  not  Subject  to  Rules  groAwing  out  of  Tenure. — 
There  are  a  few  exceptions,  however,  to  the  proposition,  that 
equity  adopts  the  same  rules  in  relation  to  equitable  estates 
which  courts  of  law  do  in  respect  to  legal  estates.  Some  of 
the  exceptions  are  that  such  estates  are  not  the  subjects  of 
tenure,  as  understood  by  the  common  law,^  nor  of  seisin  or  dis- 
seisin, as  these  terms  are  ordinarily  applied.^  Nor  can  they 
be  conveyed  by  any  mode  which  operates  by  force  of  the  statute 
of  uses.^  Nor  do  they  escheat ;  so  that,  if  the  cestui  fail  of  heirs 
the  entire  estate  becomes  absolute  in  the  trustee.'^ 

Penn.  St.  283  ;  Halsey  v.  Tate,  52  id.  311  ;  Lingenfelter  v.  Rieliey,  62  id,  123; 
King  V.  Pardee,  96  U.  S.  90  ;  Brawner  v.  Staup,  21  Md.  337.  In  Pennsylvania, 
actions  to  enforce  implied  or  resulting  trusts  must  be  brought  within  five  years 
from  the  time  the  trust  accrued.     Hollinshead's  App.,  103  Penn.  St.  1.58. 

1  Starke  v.  Starke,  3  Rich,  447  ;  3  Bro.  C.  C.  646,  Perkins'  note  ;  Kane  v. 
Bloodgood,  7  Johns,  Ch,  123  ;  Willison  v.  Watkins,  3  Pet.  43,  52 ;  Phalen  v. 
Clark,  19  Conn,  421  ;  Sherwood  v.  Sutton,  5  Mason,  C.  C.  143, 

2  2  Flint.  Real  Prop.  772;  Oliver  v.  Piatt,  3  How.  411  ;  Hunter  v.  Marlboro, 
2  Woodb,  &  M.  C,  C,  168  ;  Doe  v.  Prosser,  Cowp.  217;  Willison  v.  Watkins,  3  Pet, 
43,  52  ;  Selby  v.  Alston,  3  Ves.  342,  Sumner's  note  ;  Bohannon  v.  Sthreshley, 
2  B.  Mon.  438  ;  Murdock  v.  Hughes,  7  Sm,  &  M,  219;  Williams  v.  First  Presb. 
See,  1  Ohio  St.  478.  See  Cunningham  v.  McKiudley,  22  Ind.  151  ;  Roberts  v. 
Roberts,  7  Bush,  100. 

8  Bryan  v.  Weems,  29  Ala.  423. 

*  1  Spence,  Eq.  Jur,  500, 

6  2  Flint,  Real  Prop.  771  ;  1  Prest.  Abst,  148, 

6  Co,  Lit,  290  b,  note  249,  §  14, 

7  2  Spence,  Eq.  Jur.  32  ;  Wms,  Real  Prop,  160;  Lewin,  Trusts  (2d  ed,),  678; 
Burgess  V.  Wheate,  1  W.  BI.  123.  But  in  Maryland,  trust  lands  escheat.  Matthews 
i".  Ward,  10  Gill  &  J.  443.     See  post,  §  1872. 


CLASSIFICATION    OF   TRUSTS.  457 

§  1452.  Receipt  of  Profits  equivalent  to  Seisin.  —  But  wllile, 
in  respect  to  the  legal  estate  of  the  trustee,  the  doctrines  of 
the  common  law  as  to  seisin  and  possession  of  lands  apply ,^ 
in  courts  of  equity  the  actual  receipt  of  rents  and  ])rorits 
under  the  equitable  title  answers  to  a  seisin  of  premises  at 
law ;  and  this  right  may,  liice  a  seisin,  be  lost  by  a  long 
adverse  enjoy  men  t.^ 

§  1453.  "  Heirs  "  in  limiting  Estates  of  Inheritance.  —  Another 
exception  is,  that  the  word  "  heirs"  is  not  always  necessary  in 
order  to  give  an  equitable  estate  the  character  of  inheritability, 
if  it  requires  that  such  an  effect  should  be  given  in  order  to 
carry  out  the  clear  intention  of  the  party  creating  it.  Thus  it 
is  said,  if  land  be  given  to  a  man  without  the  word  "  heirs," 
and  a  trust  be  declared  of  that  estate,  and  it  can  bo  satisfied  in 
no  other  way  but  by  the  cestui  que  trust  taking  an  inheritance, 
it  has  been  construed  that  a  fee  passes  to  him  even  without 
the  word  "  heirs."  ^  It  is  a  settled  rule  of  law,  that,  "  if  the 
purposes  of  the  trust  cannot  by  possibility  be  satisfied  without 
a  fee,  courts  of  law  will  so  construe  it,"  wherever  there  is  a 
devise  to  trustees.^  Where,  therefore,  there  is  a  devise,  to  a 
religious  society,  of  an  estate  which  was  to  be  kept  in  the  pos- 
session and  under  the  management  of  trustees  named,  who 
were  to  receive  the  rents  for  the  use  of  the  society,  it  was  held 
to  clothe  the  trustees  with  a  fee,  so  far  as  the  legal  estate  was 

1  1  Spence,  Eq.  Jur.  502. 

2  2  Lewin,  Trusts  (2lI  ed.),  514 ;  Cholmoiideley  v.  Clinton,  2  Jac.  &  W.  152. 

8  Villiers  v.  Villieis,  2  Atk.  71;  Fisher  v.  Fields,  10  Johns.  505;  Gates  v. 
Cooke,  3  Burr.  1684  ;  Gould  v.  Lamb,  11  Met.  87.  But  this  intention  must  be  clear. 
McEh-oy  V.  McElroy,  113  Mass.  509.  When  the  words  "heirs  at  law"  are  used 
in  a  limitation  of  trust  interests,  it  has  been  held  that  where  the  property  may 
comprise  both  realty  and  personalty  the  words  are  to  be  taken  in  their  strict  sense, 
and  not  as  meaning  the  next  of  kin.  Thus,  where  the  limitation  was  to  pay  over 
the  income  of  property  invested  in  both  real  and  personal  property  as  a  trust  fund 
to  A  if  he  should  be  alive  at  a  certain  date,  and  if  not,  to  his  heirs  at  law,  it  was 
held  that  the  words  were  to  be  taken  in  their  literal  sense  ;  though  it  is  intimated 
that  if  the  property  had  been  wholly  personal  the  case  might  be  different.  Merrill 
V.  Preston,  135  Mass.  451. 

*  Welch  V.  Allen,  21  Wend.  147  ;  Trent  v.  Hanning,  7  East,  97  ;  Lewin,  Trusts 
(2d  ed.),  234  ;  Shaw  v.  Weigli,  2  Stra.  803  ;  Fletch.  Trust.  49  ;  Gibson  v.  Montfort, 
1  Ves.  Sen.  485  ;  Gibson  v.  Rogers,  Ambl.  93,  95  ;  Villiers  v.  Villiers,  2  Atk.  71  ; 
Newhall  v.  Wheeler,  7  Mass.  189;  Gates  v.  Cooke,  3  Burr.  1686,  per  Wilmot,  J. ; 
Atty.-Gen.  v.  Fed.  St.  Meeting-House,  3  Gray,  48;  Cleveland  v.  Hallett,  G  Cusli. 
406  ;  Doe  d.  Poor  v.  Considine,  6  Wall.  471 ;  2  Jarm.  Wills,  156. 


458  TRUSTS. 

concerned,  the  society  being  the  cestuis  que  trust,  because 
"  whenever  a  trust  is  created,  a  legal  estate  sufficient  for  the 
execution  of  the  trust  shall,  if  possible,  be  implied."  ^  And 
upon  that  ground,  a  trust  to  sell  lands,  upon  a  prescribed  con- 
tingency, confers  a  fee-simple  upon  the  trustee  to  enable  him 
to  execute  the  trust.^  Upon  a  similar  principle  a  limitation  of 
an  estate  to  one  and  the  heirs  of  his  body  may,  notwithstanding 
the  rule  in  Shelley's  case,  be  construed  to  be  an  estate  for  life 
in  the  first  taker,  with  a  separate  and  independent  estate-tail 
to  the  children  as  purchasers.  And  this  applies  especially  in 
marriage  settlements,  because,  if  held  to  be  an  ordinary  estate- 
tail  in  the  parent  to  whom  the  estate  for  life  is  first  limited,  he 
might,  by  barring  the  entail,  deprive  the  children  of  the  benefit 
of  the  estate.'^ 

§  1454.  Legal  Estate  measured  by  the  equitable.  —  On  the 
other  hand,  trustees  will  not  in  general  be  held  to  take  any 
larger  estate  than  the  nature  of  the  trust  requires,  where  the 
trust  is  to  last  for  a  certain  time  only,  even  though  in  terms  it 
be  limited  to  the  trustee  and  his  heirs.*  Every  trustee,  there- 
fore, is  presumed  to  take  an  estate  as  large  as  may  be  necessary 
for  the  purposes  of  his  trust,  and  no  larger,  although  the  limita- 
tion be  to  him  and  his  heirs,  or  be  to  him  without  any  words 
of  inheritance.^  The  trustee  will  take  a  fee  if  the  trust  is  of 
such  a  nature  that  it  does  or  may  require  an  estate  in  the 
trustee  beyond  the  term  of  his  own  life.^     Thus  it  was  held  in 

1  Stanley  v.  Colt,  5  "Wall.  168. 

2  Lewin,  Trusts  (2d  ed.),  235;  Loveacres  v.  Blif;ht,  Cowp.  356;  Neilson  v. 
Lagow,  12  How.  98;  Angell  v.  Rosenbury,  12  Mich.  266. 

8  Wms.  Real  Prop.  137  ;  Sand.  Uses,  311. 

*  Fletch.  Trust.  49  ;  Doe  d.  Woodcock  i-.  Barthrop,  5  Taunt.  382  ;  1  Cruise, 
Dig.  388  ;  Doe  d.  Davies  v.  Davies,  1  Q.  B.  438  ;  Liptrot  v.  Holmes,  1  Ga.  381 ; 
Doe  d.  Poor  v.  Considine,  6  Wall.  471. 

6  Norton  v.  Norton,  2  Sandf.  296 ;  McArtliur  v.  Scott,  113  U.  S.  430 ;  Ward  v. 
Amory,  1  Curtis,  C.  C.  419 ;  ScliafTer  v.  Lavratta,  57  Ala.  14  ;  Coulter  v.  Robertson, 
24  Miss.  278  ;  Ellis  v.  Fisher,  3  Sneed,  231;  Shaw  v.  Weigh,  2  Stra.  803;  Barker 
V.  Greenwood,  4  Mees.  &  W.  421 ;  Adams  v.  Adams,  6  Q.  B.  860 ;  Doe  d.  Player  v. 
Nichols,  1  Barn.  &  C.  336  ;  Doe  d.  Cadogan  v.  Ewart,  7  Ad.  &  E.  636 ;  Morton  v. 
Barrett,  22  Me.  257  ;  Smith  v.  Metcalf,  1  Head,  64  ;  Wells  v.  Heath,  10  Gray,  25  ; 
Atty.-Gen.  v.  Fed.  St.  Meeting-House,  3  Gray,  48;  Cleveland  v.  Hallett,  6  Cush. 
407;  Renziehausen  v.  Keyser,  48  Penn.  St.  351 ;  West  v.  Fitz,  109  111.  425. 

6  Cleveland  v.  Hallett,  6  Cush.  403  ;  Packard  v.  Marshall,  138  Mass.  301  ;  Far- 
quharson  v.  Eichelberger,  15  Md.  63  ;  Wilcox  v.  Wheeler,  47  N.  H.  490. 


CLASSIFICATION   OF   TRUSTS.  459 

one  case,  that  the  trustee  took  a  fee  determinable  upon  the 
arriving  of  a  person  at  the  age  of  twenty-one,  where  the  devise 
was  in  trust  till  the  youngest  son  of  the  devisor  arrived  at  that 
age,  and  the  devisees  named  were  then  to  come  into  possession 
of  the  estate.^  So  a  devise  to  A  and  B,  in  trust  for  a  parish, 
gives  the  trustees  named  a  fee,  though  no  words  of  inheritance 
are  used.^  Accordingly,  where  land  is  devised  to  trustees, 
to  sell  and  apply  the  proceeds  without  any  limitation  as  to 
the  continuation  of  the  trust,  the  title  will  remain  in  the 
trustees  till  the  sale,  unless  they  are  sooner  removed  by  the 
court.3  But  where  an  estate  was  conveyed  in  trust  to  pay 
debts,  and,  after  the  payment  of  such  debts,  in  trust  to  A  B,  it 
was  held,  that  A  B  had  an  immediate  estate  in  trust  in  the 
surplus.* 

§  1455.  Rules  for  determining  Quantity  of  Trustee's  Estate.  — 
But,  after  all,  these  are  merely  rules  of  construction  ;  and,  if  a 
less  estate  than  a  fee  is  expressly  given,  courts  cannot  enlarge 
it  by  construction,  even  though  it  would  be  inadequate  to  effect 
the  trusts,  if  not  considered  as  a  fee.^  But  where  the  convey- 
ance was  to  A  and  his  successors  in  office,  in  trust  for  a  religious 
society,  A  took  only  a  life-estate.  Nor  could  it  be  an  executed 
use  in  the  society,  so  as  to  hold  it  after  his  death,  because  it 
could  only  be  executed  during  his  life,  there  being  no  limita- 
tion to  his  heirs.^  So  if  there  are  no  words  which  give  the 
trustees  an  estate  beyond  the  time  within  which  the  trust  is 
to  be  executed,  the  estate  of  the  trustee  determines  when  that 
period  expires.  But  if  the  estate  limited  be  a  fee,  though  the 
trust  may  be  performed  in  a  limited  period  of  time,  the  estate 
in  the  trustee  will  not  determine  when  the  trust  has  been  exe- 
cuted, if  no  particular  time  is  fixed  at  which  the  trust  shall 
cease,  as  where  the  limitation  is  to  A  B  and  his  heirs  to  raise 
XI, 000.'     Accordingly,  where  a  trustee  is  appointed  to  hold 

1  Pearce  v.  Savage,  45  Me.  90 ;  Deering  v.  Adams,  37  Me.  264. 

2  Wells  V.  Heath,  10  Gray,  25  ;  Atty.-Gen.  v.  Federal  St.  Meetiug-House, 
3  Gray,  48. 

^  Cumberland  v.  Graves,  9  Barb.  595. 

*  1  Cruise,  Dig.  369  ;  Doe  d.  Pratt  v.  Timins,  1  Barn.  &  Aid.  547. 

5  Warter  v.  Hutchinson,  1  Barn.  &  C.  721  ;  Evans  v.  King,  3  Jones,  Eq.  387. 

6  Andover  Bapt.  Soc.  v.  Hazen,  100  Mass.  322. 

7  Doe  d.  Player  v.  Nicholls,  1  Barn.  &  C.  341 ;  Doe  d.  Shelley  v.  Edlin,  4  Ad. 


460  TRUSTS. 

the  estate  of  a  married  woman,  to  protect  it  from  the  husband, 
and  the  marriage  relation  comes  to  an  end,  liis  estate  at  once 
becomes  executed  in  the  person  who  is  to  take  it,  the  wife  if 
living,  or,  if  slie  is  dead,  her  heirs  at  law.^ 

§  1456.  Equitable  Estate  of  Vendee.  —  Upon  the  principles 
above  stated,  as  soon  as  a  vendor  signs  an  agreement  of  sale 
with  a  purchaser,  if  the  vendor  has  a  good  title  of  inheritance, 
it  is  held  in  equity  that  the  purchaser  has  an  immediate  estate 
in  fee-simple.  Unless  a  smaller  estate  is  expressly  bargained 
for,  it  is  understood  to  be  a  conveyance  of  whatever  estate  the 
vendor  has,  and  that  a  fee  may  thereby  pass  without  the  word 
"heirs."  2 

§  1457.  Equitable  Conversion  —  Personalty  treated  as  Realty. 
—  Under  some  circumstances,  equity,  discarding  the  technical 
rules  of  law  which  discriminate  between  real  and  personal 
property,  treats  money  as  real  estate  imbued  with  the  character 
and  incidents  of  real  estate  by  considering  that  as  done  and 
actually  existing  which  ought  to  be  done.^  Thus  a  cestui  que 
trust  may  follow  the  trust-fund  into  land  purchased  with  it  by 
his  trustee.*  So  if  lands  are  directed  to  be  sold  and  the  money 
laid  out  in  purchasing  other  lands,  to  be  settled  in  a  particular 
manner,  equity  will  regard  those  who  are  entitled  to  the  estate 
as  already  in  possession  of  tlie  estates  which  they  are  to  have. 
But  the  direction  must  be  imperative.  If  a  discretion  is  given, 
the  doctrine  of  conversion  does  not  apply .^  And  the  same  will 
be  true,  from  whatever  source  the  money  is  derived,  if  received 

&  E.  582  ;  Doe  d.  Cadogan  v.  Evvart,  7  Ad.  &  E.  636.  In  Doe  d.  Duvies  v.  Davies, 
1  Q.  B.  437,  Patteson,  J.,  says  :  "  If  the  devise  be  for  purposes  which  are  to  last 
only  for  a  certain  time,  the  use  of  the  word  '  heirs '  will  not  give  a  fee  ;  the  de- 
vise will  be  cut  down  to  the  time  necessary  for  the  purposes.  But  if  a  fee  be  given 
in  terms  with  trusts  which,  by  their  nature,  extend  over  an  indefinite  time,  it  is  not 
so :  if  no  particular  time  can  be  fixed  at  which  the  trusts  shall  end,  the  estate  cannot 
be  cut  down."  Selden  v.  Vermilya,  3  N.  Y.  525;  Comby  v.  McMichael,  19  Ala. 
747  ;  Steacy  v.  Rice,  27  Penn.  St.  75. 

1  Liptrot  V.  Holmes,  1  Ga.  381  ;  Bush's  Appeal,  33  Penn.  St.  85 ;  Steacy  v. 
Rice,  27  Penn.  St.  75  ;  Morgan  v.  Moore,  3  Gray,  323. 

2  Bower  v.  Cooper,  2  Hare,  408  ;  Wms.  Real  Prop.  137. 

3  Brothers  v.  Porter,  6  B.  Mon.  106  ;  Lewin,  Trusts  (2d  ed.),  668  ;  Putnam  v. 
Story,  132  Mass.  205. 

i  Wms.  Real  Prop.  137  ;  1  Prest.  Est.  185. 
s  Peterson's  App.,  88  Peun.  St.  397. 


CLASSIFICATION    OF   TRUSTS.  461 

with  a  direction  to  be  laid  out  in  land,^  the  grantee  or  devisee 
who  has  accepted  the  engagement  becoming  a  trustee  of  the 
equitable  interest  of  the  persons  entitled  to  the  produce  of  the 
sale.2  Money  accordingly  agreed  or  directed  to  be  laid  out  in 
land  is,  for  this  purpose,  considered  as  real  estate  in  descend- 
ing to  heirs,  instead  of  going  to  executors,  in  being  subject  to 
curtesy,  and  in  passing  by  a  devise  of  lands  and  hereditaments.^ 
And  if  a  purchaser  of  an  estate  die  before  the  deed  is  delivered, 
the  equitable  estate  will  descend  to  his  heir,  who  may  compel 
the  application  of  the  personal  estate  of  the  deceased  in  pay- 
ment of  the  purchase-money.* 

§  1458.  Trusts  to  preserve  Contingent  Remainders.  —  Another 
difference  between  the  rules  regulating  legal  estates  and  trusts 
applies  to  contingent  remainders.  By  the  common  law,  if  the 
jmrticular  estate  by  which  such  a  remainder  is  supported  is  de- 
stroyed by  the  act  of  the  tenant  before  the  remainder  becomes 
vested,  the  remainder  is  itself  destroyed.  But  no  such  conse- 
quence will  follow,  in  respect  to  a  contingent  remainder  of  the 
equitable  ownership,  by  any  act  proceeding  from  the  tenant 
of  a  prior  particular  estate  of  the  same  equitable  ownership.^ 
And  a  reason  for  this  is,  that  trusts  reject  all  the  rules  founded 
on  the  principles  of  tenure,  by  which  there  must  always  be  a 
seisin  of  the  estate  ;  and  if  that  of  the  tenant  of  the  freehold 
fails  before  the  remainder-man  is  ready  to  take  it,  it  reverts  to 
another ;  so  that,  to  adopt  the  illustration  of  a  writer,  "  if  an 
estate  be  conveyed  unto  and  to  the  use  of  B,  in  trust  for  B  for 
life,  and  after  his  death  upon  a  trust  in  favor  of  the  children 
of  C,  the  trust  for  the  children  does  not  fail  by  the  death  of  B 
before  the  birth  of  a  child  of  C  (as  it  would  have  done  if  lim- 
ited by  the  way  of  use)  ,^  but  it  subsists  for  the  benefit  of  after- 
born  children.  In  short,  the  equitable  effect  of  the  trust  is 
commensurate  with  the  legal  effect  of  an  executory  use  (as  dis- 

1  2  Flint.  Real  Prop.  800. 
'■2  Sand.  Uses,  298. 

»  2  Flint.  Real  Prop.  801  ;  Sand.  Uses,  300  ;  Lewin,  Trusts  (2d  ed.),  663  ;  Hougli- 
ton  V.  Hapgood   13  Pick.  154,  158. 
*  Wnis.  Real  Prop.  138. 
6  1  Prest.  Abst.  146. 
6  Ante,  §§  1354,  1362,  1397. 


462  TRUSTS. 

tinguished  from  a  contingent  remainder),  both  equally  rejecting 
the  strict  rules  of  the  common  law."  ^ 

§  1459.  Dower  and  Curtesy.  —  How  far  surviving  husbands 
and  wives  arc  entitled  to  curtesy  and  dower  in  the  equitable 
estates  of  inheritance  of  their  deceased  spouses  has  been  here- 
tofore discussed  under  the  titles  Dower  and  Curtesy,  q.  v. 

1  1  Spence,  Eq.  Jur.  505  ;  Fearne,  Cont.  Rem.  304,  305.  See  Scott  v.  Scar- 
borough, 1  Beav.  168  ;  Vanderheyden  v.  Crandall,  2  Denio,  9. 


HOW  CREATED,  DECLARED,  AND  TRANSFERRED.      463 


CHAPTER  LIX. 

TRUSTS — HOW   CREATED,   DECLARED,   AND   TRANSFERRED. 

§  1460.  Declarations  of  trust  prior  to  statute  of  frauds. 

1461.  Proof  required  by  statute  of  frauds. 

1462.  Statute  contemplates  two  classes  of  cases. 

1463.  What  writing  is  sufficient. 

1464.  Of  the  transfer  by  a  cestui  que  trust. 

1465.  Time  when  the  declaration  of  trust  is  made. 

1466.  Precatory  trusts. 

1467.  Not  necessary  to  transfer  legal  estate. 

1468.  Trusts  conveyed  by  simple  declaration. 

1469.  Trust,  once  created,  only  extinguished  by  merger. 

1470.  Who  must  make  declaration. 

1471.  Acceptance  of  trust  binds  trustee. 

1472.  If  person  named  as  trustee  refuses  trust. 

1473.  Death  of  one  of  joint  trustees. 

1474.  Of  trust  surviving  in  case  of  personal  confidence. 

1475.  Survivorship  —  Distinction  between  power  and  trust. 

1476.  Equity  never  wants  for  a  trustee. 

1477.  Court  has  power  to  appoint  and  remove. 

1478.  When  no  conveyance  necessary  from  old  to  new  trustee. 

1479.  When  such  conveyance  necessary. 

1480.  New  trustee  stands  in  place  of  old. 

1481.  How  far  trustee  can  impair  rights  of  cestui. 

1482.  Trustee  may  devise  his  estate. 

1483.  Effect  of  conveyance  by  trustee. 

1484.  Destruction  of  trust  by  merger. 

1485.  Husband  as  trustee  for  wife. 

§  1460.  Declarations  of  Trust  Prior  to  Statute  of  Frauds.  —  As 
has  been  heretofore  explained  a  use  in  land  could  be  raised  by 
parol  prior  to  the  statute  of  uses.^  Such  continued  to  be  the 
law  as  to  trusts,  when  they  had  taken  the  place  of  ancient 
uses,  until  the  statute  of  frauds,  29  Car.  II.  c.  3.^  And  such 
is  still  the  law  in  North  Carolina  and  Texas,  which  have  never 
adopted  the  statute  of  frauds.^    The  seventh  section   of  the 

1  Willis,  Trust.  40,  41. 

2  1  Spence,  Eq.  Jur.  497. 

8  Foy  V.  Foy,  2  Hayw.  131  ;  Leggat  v.  Leggat,  88  N.  C.  108 ;  Link  v.  Link,  90 


464  TRUSTS. 

statute  of  frauds  is  not  contained  in  the  statute  of  Tennessee,^ 
Virginia,^  or  West  Virginia.^ 

§  1461.  Proof  required  by  Statute  of  Frauds.  —  By  the  seventh 
section  of  that  statute,  all  declarations  or  creations  of  trusts, 
etc.,  of  any  lands,  tenements,  or  hereditaments,  must  be  mani- 
fested and  proved  by  some  writing,  signed  by  the  party  creating 
the  trust,  or  by  his  last  will  in  writing.  The  eighth  section 
excepts  from  the  effect  of  that  statute  trusts  which  arise  or 
result  by  the  implication  or  construction  of  laiv  ;^  while  the 
ninth  section  requires  all  grants  or  assignments  of  any  trusts, 
etc.,  to  be  made  in  writing,  signed  by  the  party,  etc.,  or  by  his 
last  will  or  devise.^  Thus,  proof  of  an  oral  admission  or  dec- 
laration by  one  holding  a  deed  of  land,  that  he  holds  it  in 
trust,  is  not  competent  evidence  to  establish  it.^  Nor  would  a 
declaration  of  a  father,  made  at  the  time  of  purchase,  that  he 
bought  the  land  for  his  son,  be  sufficient  to  create  a  trust.^ 
Tliere  are  cases,  however,  where  a  party  has,  for  a  sufficient 
consideration,  bound  his  estate  so  far  in  equity  in  favor  of  an- 
other, that,  if  he  part  with  it  to  a  third  party,  equity  will  hold 
the  latter  as  a  trustee  in  favor  of  the  one  who  was  entitled  to 
it  bv  such  agreement.  Thus  in  case  of  a  contract  to  make 
mutual  wills  between  two  persons,  if  one  has  executed  it  and 
died,  the  court  will  decree  a  specific  performance  by  the  other 
party  ;  and  the  court  has  made  the  estate  of  the  party  who  did 
not  comply  with  the  agreement  liable  to  the  other  party  who 
had  complied,  on  the  happening  of  the  event  which  entitled  him 
to  the  benefit.  And  it  is  said  that  parol  evidence  is  not  compe- 
tent to  change  the  character  of  an  absolute  deed  into  one  in 

N.  C.  235  ;  Miller  v.  Thatcher,  9  Tex.  482  ;  Millican  v.  Millican,  24  Tex,  440  ; 
Agric,  etc.  Assoc,  v.  Brewster,  51  Tex.  257. 

1  Haywood  v.  Enaley,  8  Humph.  466. 

'•2  U.  S.  Bank  v.  Carrington,  7  Leigh,  576. 

8  Currence  v.  Ward,  43  W.  Va.  367  ;  s.  c.  27  S.  E.  Rep.  329. 

*  Peabody  v.  Tarhell,  2  Cush.  226  ;  Strimpfler  i>.  Roberts,  18  Penn.  St.  283. 

6  Wms.  Real  Prop.  139. 

8  Jloore  V.  Moore,  38  N.  H.  382 ;  Sturtevant  v.  Sturtevaiit,  20  N.  Y.  39  ;  Horn 
V.  Keteltas,  46  N.  Y.  610;  Groesbeck  v.  Seeley,  13  Mich.  345  ;  Calder  v.  Moran, 
49  Mich.  14  ;  Preston  v.  Casner,  104  111.  262  ;  Wood  v.  Mulock,  48  X.  Y.  Super. 
Ct.  70  ;  Green  v.  Gates,  73  Mo.  115  ;  Page  v.  Gillentine,  6  Lea,  240  ;  Campbell  v. 
Brown,  129  Mass.  23. 

"  Lloyd  V.  Lynch,  28  Penn.  St.  419. 


HOW  CREATED,  DECLARED,  AND  TRANSFERRED.      4G5 

trust,  unless  fraud,  accident,  or  mistake  be  clearly  alleged  in 
respect  to  it,  and  proved.^  Beyond  the  citations  Ijelow,  it  is 
not  deemed  necessary  to  add  anything  in  this  connection  to 
what  has  already  been  said  of  implied,  resulting,  or  construc- 
tive trusts,  as  they  are  excepted  from,  and  not  affected  by, 
the  statute  of  frauds  ;2  unless  it  be,  that  whether  a  resulting 
trust  has  been  discharged  or  not  is  the  subject  of  parol  proof.^ 
Tlie  statute  of  frauds  does  not  apply,  moreover,  to  an  executed 
trust.  Thus,  where  one  conveyed  to  his  son  a  piece  of  land  by 
a  deed  absolute  upon  its  face,  but  which  was  proved  to  have 
been  conveyed  in  trust  to  sell  and  divide  the  proceeds  among 
all  the  children,  and  the  trustee  proceeded  to  pay  over  to  the 
children  money  as  a  part  execution  of  the  trust,  it  was  held 
that  although  no  declaration  of  trust  in  writing  was  proved, 
and  although  the  trust  was  therefore  not  enforceable  as  an  obli- 
gation on  the  trustee,  yet  as  he  had  paid  the  money  under  it, 
and  thus  executed  the  trust  voluntarily,  he  could  not  recover 
back  the  money  he  had  so  paid.*  If  a  piece  of  land  is  held 
under  a  parol  trust,  and  the  trustee  sells  the  land,  and  holds 
the  money  received  for  it,  and  admits  that  he  holds  the  money 
subject  to  the  trust,  it  has  been  held  that  the  trust  is  good  as 
regards  the  money .^  And  if  one  hold  land  upon  a  parol  trust, 
his  answer  in  a  chancery  suit  admitting  the  trust  is  binding 
upon  him  as  a  declaration.^ 

§  1462.  The  Statute  contemplates  two  Classes  of  Cases ;  namely, 
the  creation  of  new  trusts,  and  the  transfer  of  trusts  already 
created  and  in  existence.  All  that  it  requires  as  to  either  of 
these  classes  is  a  writing  signed  by  the  party  creating  or  trans- 
ferring the  trust,  or  the  doing  this  by  his  last  will.  And  al- 
though it  is  usual  to  adopt  the  same  forms  of  conveyance  by 

1  Katliff  y.  Ellis,  2  Iowa,  59  ;  Hall  v.  Young,  37  N.  H.  134  ;  4  Am.  Law  Eev. 
661.  See  ante,  §  1428;  Baitlett  v.  Bartlett,  14  Gray,  278  ;  Blo(lj,'et  v.  Hildreth, 
103  Mass.  486. 

2  1  Spence,  Eq.  Jur.  497,  512 ;  1  Cruise,  Dig.  391  ;  Rhea  v.  Tucker,  56  Ala. 
450;  Ward  v.  Armstrong,  84  III.  151  ;   Boskowitz  v.  Davis,  12Nev.  446. 

3  Hopkinson  v.  Dumas,  42  N.  H.  303  ;  Farrington  v.  Barr,  36  N.  H. 
86. 

4  Eaton  V.  Eaton,  35  N.  J.  L.  290  ;  Moore  v.  Cottingham,  90  Ind.  239. 
6  Calder  v.  Moran,  49  Mich.  14. 

6  Myers  v.  Myers,  167  III.  52  ;  s.  c.  47  N.  E.  Rep.  309. 
VOL.  II.  —30 


466  TRUSTS. 

deed  in  the  matter  of  trusts  as  in  the  case  of  legal  estates, 
such  formality  is  not  necessary .^ 

§  1463.  WhatWriting  is  sufficient — It  is  not  even  necessary 
that  the  declaration  should  be  made  to  the  cestui  que  trust? 
And  if  made  in  his  favor,  though  unknown  to  him,  he  may 
claim  and  enforce  it,  if  he  do  so  within  a  reasonable  time.^ 
Nor  is  it  necessary  that  what  is  written  should  be  intended  as 
a  declaration  or  evidence  of  the  trust,  since  the  object  of  re- 
quiring a  writing  is  not  thereby  to  declare  or  create  a  trust, 
but  to  furnish  the  requisite  and  only  competent  evideyice  of  an 
existing  fact;  namely,  that  there  is  a  trust  and  confidence  in 
the  trustee  in  respect  to  the  estate,  in  favor  of  another,  and 
which,  but  for  the  statute,  might  be  otherwise  proved.'*  The 
evidence,  however,  should  show,  not  only  that  there  is  this 
trust,  but  what  the  trust  is.^  No  particular  form  of  words  or 
expression  is  required  to  create  a  trust,  provided  the  language 
used  clearly  indicates,  on  the  part  of  the  trustee,  that  the  land 
is  held  by  him  in  trust,  or  if  the  papers  by  which  he  holds  it 
indicate  the  same.^  And  in  interpreting  the  words  in  which  a 
trust  is  declared,  courts  adopt  the  same  rules  as  in  granting 
the  legal  estate.  Thus  a  trust  in  favor  of  A,  with  no  words  of 
inheritance,  would  be  for  life  only.'^ 

§  1464,    Of  the  Transfer  by  a  Cestui  que  Trust.  —  The    same 

1  1  Spence,  Eq.  Jur.  506  ;  Wms.  Real  Prop.  140 ;  Willis,  Trust.  47  ;  Sand. 
Uses,  342  ;  Co.  Lit.  290  b,  note  249,  §  14. 

2  Barren  v.  Joy,  1 6  Mass.  221  :  McClellan  v.  McClellan,  65  Me.  500 ;  Browne, 
Stat.  Frauds,  §  99. 

3  Ward  V.  Lewis,  4  Pick.  521-523  ;  Berly  v.  Taylor,  5  Hill,  577  ;  Shepherd  v. 
M'Evers,  4  Johns.  Ch.  136  ;  Crocker  v.  Higgins,  7  Conn.  342;  Scull  v.  Reeves, 
3  N.  J.  Eq.  84  ;  Bryant  v.  Russell,  23  Pick.  508,  520 ;  Hill,  Trust.  52,  Wharton's 
note  for  American  cases. 

4  Forster  v.  Hale,  3  Ves.  707  ;  Steere  v.  Steere,  5  Johns.  Ch.  1  ;  Lewin,  Trusts, 
30  ;  1  Cruise,  Dig.  390  ;  Unit.  Soc.  v.  Woodbury,  14  Me.  281  ;  McClellan  v.  Mc- 
Clellan, 65  Me.  500  ;  Brown  v.  Brown,  1  Strobh.  Eq.  363  ;  1  Spence,  Eq.  Jur. 
497;  Movan  v.  Hays,  1  Johns.  Ch.  339,  342;  Trapnall  v.  Brown,  19  Ark.  48; 
1  Greenl.  Ev.  §  266  ;  Brown  v.  Combs,  29  N.  J.  36,  39. 

6  Forster  v.  Hale,  3  Ves.  707 ;  Lewin,  Trusts,  31  ;  Steere  v.  Steere,  5  Johns. 
Ch.  1. 

6  Norman  v.  Bui-nett,  25  Miss.  183 ;  Forster  v.  Hale,  3  Ves.  707  ;  Scituate  v. 
Hanover,  16  Pick.  222  ;  Arms  v.  Ashley,  4  Pick.  71 ;  Gomez  v.  Tradesmen's 
Bank,  4  Sandf.  102  ;  1  Spence,  Eq.  Jur.  497  ;  White  v.  Fitzgerald,  19  Wis.  480, 
485. 

•  Evans  i-.  King,  3  Jones  (N.  C),  Eq.  387. 


HOW  CREATED,  DECLARED,  AND  TRANSFERRED.      467 

rule  applies  as  to  what  is  necessary  in  form,  in  conveying  or 
transferring  an  existing  trust  by  a  cestui  cjue  trust,  as  in  creat- 
ing it  at  first.  The  writing  by  which  it  is  done  should  express 
the  intention  of  the  assignor  to  convey,  with  proper  formal 
words  of  limitation,  or  words  indicating  the  quantity  of  estate 
it  is  intended  the  eestui  que  trust  should  take.^  But  the  evi- 
dence of  such  creation  or  transfer  must  all  be  in  writing,  with- 
out the  necessity  of  resorting  to  parol  evidence  to  connect  the 
writings  by  which  this  is  sought  to  be  shown.^  In  applying 
these  rules,  it  has  been  held,  that  where  the  deed  was  to  "  A, 
as  he  is  trustee  of  B,"  it  would  be  competent  to  refer  to  a  will 
by  which  A  is  created  a  trustee  of  B,  though  this  was  not 
referred  to  in  the  deed.^  So  where  a  trust  was  created  in 
favor  of  "  the  rightful  owners  "  of  a  certain  estate,  they  were 
permitted  to  show,  aliunde,  who  these  owners  were,  so  as  to 
establish  the  trust.^  Letters  from  one  holding  real  estate, 
addressed  to  A  and  B,  in  which  he  speaks  of  the  estate  in  such 
a  manner  as  to  show  an  acknowledgment  on  his  part  that  A 
and  B  and  others  are  interested  in  it,  might  be  sufficient  evi- 
dence of  an  existing  trust  in  favor  of  these  persons.^ 

1  1  Spence,  Eq.  Jur.  506;  Wright  v.  Wright,  1  Ves.  Sen.  409  ;  2  Flint.  Real 
Prop.  779  ;  Brydges  v.  Brydges,  3  Ves.  120 ;  2  Prest.  Conv.  368. 

2  Abeel  v.  Radcliff,  13  Johns.  297  ;  Parkhurst  v.  Van  Cortlaudt,  1  Johns.  Ch. 
273  ;  Chadwick  v.  Perkins,  3  Me.  399  ;  Walker  v.  Locke,  5  Cush.  90.  The  paper 
declaring  the  trust  may  refer  to  a  supplementary  paper  to  define  the  beneficiaries. 
Heermans  v.  Schmaltz,  10  Biss.  C.  C.  323. 

8  Cleveland  v.  Hallett,  6  Cush.  403. 

*  Ready  v.  Kearsley,  14  Mich.  226. 

6  Pratt  V.  Aver,  3  Chandl.  (Wis.)  265  ;  Forster  v.  Hale,  3  Ves.  707,  and  cases 
cited  in  note  ;  Sumner's  ed.  696  and  713  ;  Lake  v.  Freer,  11  111.  App.  576.  See 
Montague  v.  Hayes,  10  Gray,  609.  But  if  the  letters  are  simply  an  incomplete 
expression  of  a  testamentary  disposition  of  the  property,  they  will  not  create  a 
trust.  Preston  v.  Casner,  104  111.  262.  And  if  the  letters,  while  they  acknowledge 
that  the  writer  holds  the  land  subject  to  a  trust,  leave  the  terms  of  the  trust  indefi- 
nite, and  do  not  show  who  are  the  ccstuis  que  tnisf.,  or  what  estate  or  in  what 
proportions  they  take,  the  court  will  not  go  outside  the  letters  and  resort  to  parol 
evidence  to  obtain  these  facts,  but  will  pronounce  the  trust  invalid.  Dyer's  App., 
107  Penn.  St.  446.  A  bond  conditioned  to  convey  an  estate  to  such  person  as  the 
obligee  should  api)oiut,  given  by  one  in  whose  name  the  estate  had  been  purchased, 
was  held  to  be  sufficient  to  create  a  trust  in  favor  of  the  obligee.  Moorecroft  v. 
Dowding,  2  P.  Wms.  314  ;  Orleans  v.  Chatham,  2  Pick.  29.  So  an  indenture  of 
three  parts,  reciting  that  A  held  the  estate  in  trust  for  B,  and  had  conveyed  to  C 
by  B's  request,  was  held  sufficient  to  declare  C  a  trustee.     Wright  v.   Douglass, 


468  TRUSTS. 

§  1465.  The  Time  -when  the  Declaration  of  the  Trust  is  made,  if 
done  in  writing,  may  be  either  before  or  after  the  conveyance 
to  the  trustee  has  been  niade.^ 

§  14G6.  Precatory  Trusts.  —  Sometimes  a  testator  produces 
the  same  efi'ect  by  precatory  or  recommendatory  words  in  his 
will,  unless  he  clearly  leaves  the  devisee  to  choose  whether  to 
follow  these  or  not  at  his  election.  As  where  his  language 
was  "  desire,"  "  will,"  "  entreat,"  "  order  or  direct,"  "  recom- 
mend," "  hope,"  "  no  doubt,"  and  the  like,  it  has  been  held 
sufficient  to  raise  a  trust,  where  the  objects  intended  to  be 
benefited,  and  the  property  to  be  applied,  are  clearly  indi- 
cated.^ Mere  precatory  words  of  desire  or  recommendation 
will  not,  in  general,  convert  the  devise  into  a  trust,  unless  it 
appears  affirmatively  that  they  were  intended  to  be  impera- 
tive.^    But  there  must  be  certainty  as  to  the  parties  who  are 

7  N.  Y.  .564.  So  an  indorsement  upon  a  soldier's  discharge,  of  a  certificate  that 
A  B  was  entitled  to  whatever  lands  such  soldier  iniglit  have  a  claim  to  for  his  ser- 
vice, was  held  to  be  sufficient  to  raise  a  trust  in  favor  of  A  B  against  the  soldier  to 
whom  a  patent  for  the  land  subsequently  issued  ;  A  B  having,  at  the  date  of  the 
indorsement,  bought  the  soldier's  right,  and  paid  an  agreed  price  for  it.  Fisher 
V.  Fields,  10  Johns.  495.  So  an  indorsement  upon  an  envelope,  containing  a 
deed  signed  by  the  grantee,  "  Deeds,  etc.,  property  held  by  me  in  trust  for  B,  wife, 
etc.,  to  be  conveyed  to  B  when  he  desires  it,"  was  held  to  be  a  sufficient  declaration 
of  a  trust.  Ray  bold  V.  Piiiy  bold,  20  Penn.  St.  308.  The  admission  of  the  trust 
which  it  was  sought  to  chai'ge  upon  the  defendant  was  contained  in  a  printed 
pamphlet  which  was  published  by  him  in  relation  to  the  estate.  Barrell  v.  Jo}', 
16  Mass.  221.  And  another  piece  of  evidence  held  competent  in  the  same  case  was 
the  language  of  an  indenture  about  the  land  between  the  defendant  and  a  stranger. 
Ibid.  See  also  Hutchinson  v.  Tindall,  3  N.  J.  Eq.  357  ;  Browne,  Stat.  Frauds, 
§§  98,  99  ;  Willis,  Trusts,  47.  But  merely  calling  a  deed  in  the  recital  of  other 
deeds  a  deed  of  trust  does  not  render  it  so.  Hurst  v.  M'Neil,  1  Wash.  C.  C.  70. 
An  acknowledgment,  however,  of  a  trust  in  an  answer  to  a  bill  in  equity  is  sufficient 
evidence  of  a  declaration  of  trust.  Barron  v.  Barron,  24  Vt.  375  ;  Pratt  v.  Ayer, 
3  Chandl.  (Wis.)  265.  If  a  testator  direct  his  land  to  be  sold  to  pay  debts,  or 
charge  it  with  these  or  with  legacies,  it  is  a  good  declaration  binding  the  heir  or 
devisee.     Lewin,  Trusts,  77  ;  Marx  v.  McGlynn,  88  N.  Y.  357. 

1  Barrell  v.  Joy,  16  Mass.  221  ;  Jackson  v.  Moore,  6  Cow.  706. 

2  Erickson  v.  Wiilard,  1  N.  H.  217  ;  Jarm.  Wills,  334  ;  Lewin,  Trusts,  77  ; 
Story,  Eq.  Jur.  §  1068  ;  Harrison  v.  Harrison,  2  Gratt.  1 ;  Handley  v.  Wrightson, 
60  Md.  198  ;  Willis,  Trust.  48  ;  Harper  v.  Phelps,  21  Conn.  257  ;  Williams  v. 
Worthington,  49  Md.  572  ;  Sand.  Uses,  317.  See  this  principle  limited  and  ex- 
plained at  length,  Pennock's  Est.,  20  Penn.  St.  274-230,  by  Lovvrie,  J.  Warner  v. 
Bates,  98  Mass.  277 ;  4  Am.  L.  Rev.  617-624. 

3  Burt  V.  Herron,  66  Penn.  St.  402  ;  Bowley  v.  Thunder,  105  Penn.  St.  173  ; 
Sears  v.  Cunningham,  122  Muss.  538  ;  Hess  v.  Singler,  114  Mass.  59. 


now  CREATED,  DECLARED,  AND  TRANSFERRED.      469 

to  take,  and  as  to  what  they  are  to  take.  The  words  "  will " 
and  "  desire  "  are  not  necessarily  mandatory.  If  designed  to 
be  peremptory,  they  become  imperative,  though  'precatory  in 
form.  A  devise  to  A  for  life  of  real  and  personal  estate,  with 
a  remainder  to  a  grandson,  with  a  "  will  "  and  "  desire,"  that, 
if  the  grandson  come  of  age,  he  should  have  "  a  portion  of  the 
estate  as  a  loan,"  was  held  not  to  create  a  trust  in  favor  of  the 
grandson  during  A's  life.^  And  generally,  where  one  gives 
property  by  will,  and  points  out  the  object  of  the  gift,  the  prop- 
erty, and  the  way  it  shall  go,  a  trust  is  created,  unless  the  will 
expressly  leave  the  property  subject  to  the  control  of  the 
trustee.^ 

§  1467.  Not  necessary  to  transfer  Legal  Estate.  —  It  is  not 
necessary  that  the  creation  of  a  trust  should  be  accompanied 
by,  or  connected  with,  any  transfer  or  change  in  the  legal  es- 
tate, or  made  simultaneously  therewith.  As  if,  for  instance, 
the  owner  of  real  estate  were  to  declare  himself,  in  writing, 
trustee  of  another  in  respect  to  the  same,  the  beneficial  interest 
in  the  property  would  pass  to  the  cestui  que  trust  named,  with- 
out any  further  act  being  necessary  to  effect  it.^  Where  a 
trustee,  being  debtor  to  the  trust,  in  order  to  secure  it  made  a 
deed  of  his  land  to  himself  as  trustee,  which  was  duly  exe- 
cuted but  not  recorded,  and  left  it  among  his  papers,  it  was 
held  a  good  declaration  of  trust  and  bound  his  estate  accord- 
ingly.* And  where  a  deed  was  made  "  to  a  school-house  aud 
the  congregation  thereof,"  though  it  would  pass  no  legal  estate, 
because,  for  one  reason,  no  person  competent  to  take  is  named 
as  grantee,  yet  it  was  held  to  be  a  good  declaration  of  trust, 
leaving  the  title  to  vest  where  it  was  before. 

§  1468.  Trusts  conveyed  by  Simple  Declaration. — The  same 
doctrine  applies  to  the  case  of  a  cestui  que  trust  transferring 
the  trust  from  himself  to  another.  It  will  be  sufficient  for 
him  to  declare  that  his  trustee  shall  be  the  trustee  of  the 
other   person    to  whom  he  wishes   to   make    over   the   trust, 

^  Lines  v.  Darden,  5  Fla.  51. 

2  Inglis  V.  Sailor'  Snug  Harbor,  3  Pet.  119  ;  Foose  v.  Wliittemore,  S2  N.  Y. 
405  ;  Haiidley  v.  Wrightson,  supi-n. 

^  1  Spence,  Eq.  Jur.  507 ;  Suarez  v.  Pumpelly,  2  Saiulf.  Cli.  336 ;  Morrison  v, 
Beirer,  2  Watts  &  S.  81. 

*  Carson  v.  Plielps,  23  Am.  L.  Eeg.  103  ;  s.  c.  40  MJ.  73. 


470  TRUSTS. 

especially  if  such  other  person  gives  the  trustee  notice  of  the 
transfer.^ 

§  1469.  Trust,  once  created,  only  extinguished  by  Merger.  — 
Where  a  trust  has  once  been  created  in  respect  to  real  estate, 
it  attaches  to  and  binds  itself  upon  the  estate,  and  can  never 
be  detached  from  it,  or  extinguished,  except  by  a  union  of 
the  legal  and  equitable  estates  in  one  person  ;  the  equitable,  in 
such  case,  being  merged  in  the  legal  estate.^ 

S  1470.  The  Declaration  must  be  made  by  the  one  holding  the 
Legal  Estate  at  the  time.  His  act  is  the  source  or  origin  of  the 
two  estates  which  flow  on  afterwards,  independent  of  each 
other  in  point  of  ownership,  until  they  merge  by  being  again 
united  in  one  person.^ 

§  1471.  Acceptance  of  Trust  binds  Trustee.  —  No  one  is 
obliged  to  become  a  trustee  by  the  appointment  of  another, 
To  constitute  one  such,  he  must  accept  the  trust  by  words  or 
by  some  interference  with  the  estate  which  is  put  in  trust.* 
But  a  trustee,  when  he  has  accepted  the  trust,  cannot  surrender 
it  or  discharge  himself  of  it  without  the  consent  of  the  cestui 
que  trust  or  direction  of  the  court,  unless  there  is  a  power  to 
that  effect  given  in  the  instrument  creating  the  trust.^  Where 
a  gift  is  made  by  deed,  will,  or  otherwise,  the  law  presumes 
it  to  be,  prima  facie,  beneficial  to  the  donee,  and  that  it  is 
accepted  by  the  donee,  unless  the  contrary  is  shown.  And 
this  seems  to  apply  both  to  the  trustee  and  cestui  que  trust.^ 

§  1472.  If  the  Person  named  as  Trustee  refuses  the  Trust,  it  IS 
treated  precisely  as  if  he  were  dead,  or  had  never  been  named  ; 
and  if  he  be  one  of  several  named,  the  estate  vests  in  such  of 
them  as  do  accept  the  trust.^     The  refusal  here  meant  is  some- 

1  1  Spence,  Eq.  Jur.  507. 

2  1  Spence,  Eq.  Jur.  501  ;  1  Cruise,  Dig.  403  ;  Sand.  Uses,  35;  post,  §  1484. 
8  Willis,  Trust.  55  ;  Crop  v.  Norton,  2  Atk.  76. 

*  Willis,  Trust.  38,  72  ;  Baldwin  v.  Porter,  12  Conn.  473  ;  Lewis  v.  Baird, 
3  McLean,  C.  C.  58  ;  Scull  v.  Beeves,  3  N.  J.  Eq.  84;  Goss  v.  Singleton,  2  Head, 
67  ;  Story,  Eq.  Jur.  §1061. 

5  Shepherd  v.  M'Evers,  4  Johns.  Ch.  136  ;  Lewiu,  Trusts,  457  ;  Cruger  v. 
Halliday,  11  Paige,  319;  Drane  r.  Gunter,  19  Ala.  731;  Gilchrist  v.  Stevenson, 
9  Barb.  9 ;  Lalor,  Real  Est.  195. 

6  Hill,  Trust.  214  ;  Goss  v.  Singleton,  2  Head,  77,  and  note  to  p.  68  ;  Cloud  v. 
Calhoun,  10  Rich.  Eq.  358. 

■^  Hill,  Trust.  225  ;  King  v.  Donnelly,  5  Paige,  Ch.  46  ;  unless  it  be  a  devise  to 


HOW  CREATED,  DECLARED,  AND  TRANSFERRED.      471 

thing  more  than  a  mere  oral  declaration  made  at  any  time : 
there  must  be  some  actual  disclaimer  of  the  trust  on  the  part 
of  the  party  named,  or  he  may,  at  any  time,  assume  the  trust.-' 
But  where  one  named  as  trustee  in  a  will  forbore,  for  twenty 
years,  to  accept  or  do  anything  under  the  appointment,  it  was 
held  that  he  had  renounced  the  trust,  and  refused  to  accept  it.^ 
The  refusal  may  be  by  deed,  by  matter  of  record,  or  any 
written  evidence,  or  by  answer  in  chancery.  And  such  refusal 
or  disclaimer  will  relate  back,  and  will  be  held  to  have  been 
made  at  the  time  of  the  gift.^  And  if  the  trustee  should  de- 
cline or  refuse  to  act  at  all,  the  court  may  appoint  other 
trustees,  if  necessary,  to  carry  the  trust  into  effect.* 

§  1473.  Death  of  one  of  Joint  Trustees.  — Whether  the  power 
and  interest  of  a  trustee  survive  when  given  to  several,  and  one 
or  more  of  them  dies,  depends  upon  the  nature  of  the  trust  and 
the  form  of  the  power  delegated.  If  the  authority  be  com- 
mitted to  trustees,  the  presumption  is,  that,  as  the  power  was 
coupled  with  an  interest,  it  was  meant  to  survive.^  "  If  a  man 
deviseth  lands  to  his  executors  to  be  sold,  and  maketh  two 
executors,  and  one  dieth,  yet  the  survivor  may  sell  the  land, 
because  as  the  state  (estate),  so  the  trust  shall  survive,  and  so 
note  the  diversity  between  a  bare  trust  and  a  trust  coupled 
with  an  interest."^ 

§  1474.  Of  Trust  surviving  in  Case  of  Personal  Confidence.  — 
This  subject  of  survivorship  comes  more  properly  under  the 
head  of  Powers,  which  will  be  found  in  a  subsequent  part  of 
this  work ;  and  therefore  it  is  only  necessary  now  to  say  in 
general  terms,  that,  if  a  power  be  a  joint  one  coupled  with  an 

trustees,  and  they  all  decline  the  trust.  Trask  v.  Donoghue,  1  Aik.  (Vt.)  373  ; 
Putnam  Free  School  v.  Fisher,  30  Me.  526.  A  devise  to  executors  eo  nomine,  in 
trust,  vests  in  such  of  them  as  execute  the  will,  and  their  survivors,  though  it  be 
a  trust  to  sell  lands.  Leavens  v.  Butler,  8  Port.  394  ;  Scull  v.  Keeves,  3  N.  J.  Eq. 
94,  95  ;  Co.  Lit.  113  a  ;  Lewin,  Trusts,  428;  Jones  v.  Maffet,  5  Serg.  &  R.  523  ; 
Burrill  v.  Sheil,  2  Barb.  457  ;  Conover  v.  Hoffman,  1  Bosw.  214  ;  Hill,  Trust.  225  ; 
Goss  V.  Singleton,  2  Head,  68,  note  ;  Saunders  v.  Harris,  1  Head,  185,  206. 

1  Judson  V.  Gibbons,  5  Wend.  224  ;  McCosker  v.  Brady,  1  Barb.  Ch.  329  ; 
Tainter  v.  Clarke,  13  Met.  220,  227  ;  Lewin,  Trusts,  428. 

2  Matter  of  Robinson,  37  N.  Y.  263. 

8  Hill,  Trust.  224  ;  Goss  v.  Singleton,  2  Head,  67. 

*  Story,  Eq.  Jur.  §  1061  ;  White  v.  Hampton,  13  Iowa,  259. 

6  Lewin,  Trusts,  428  ;  Story,  Eq.  Jur.  §  1062  ;  Peter  v.  Beverly,  10  Pet.  564. 

6  Co.  Lit.  113  a. 


•172  TRUSTS. 

interest,  it  will  survive  if  one  of  the  donees  of  the  power  die. 
But  where  it  is  a  mere  naked  authority  it  will  not  survive.  So 
if  the  authority  be  to  two  or  more  in  an  ofificial  capacity,  ratione 
officii,  it  will  survive  if  either  die.  But  if  it  be  to  them  nomi- 
natim,  or  they  are  clothed  with  a  special  confidence  of  a  per- 
sonal nature,  it  will  not  survive.^  And  the  same  rule,  it  would 
seem,  applies  where  one  or  more  of  the  trustees,  instead  of 
dying,  decline  to  act  as  such.^  Though  in  New  York,  if  one  of 
several  trustees  is  suffered  to  resign,  the  others  cannot  go  on 
and  act  as  if  he  were  dead :  a  new  trustee  must  be  appointed 
in  his  place.^  It  often,  therefore,  furnishes  a  ready  clew  by 
which  to  determine  whether  a  trust  in  two  or  more  persons 
survives  upon  the  death  of  one  of  them  or  not,  to  examine 
whether  it  is  of  the  nature  of  a  personal  confidence  or  not;  for 
if  the  act  to  be  done  requires  an  exercise  of  the  judgment  and 
discretion  of  the  several  persons  named  as  trustees,  it  can  only 
be  exercised  by  them  all.* 

§  1475.  Survivorship  —  Distinction  between  Power  and  Trust. 
—  And  the  rule  to  be  gathered  from  what  is  above  said  may  be 
again  stated,  that  where  there  are  several  joint-trustees,  and 
one  of  them  dies,  the  survivors  take  and  are  authorized  to  act 
by  virtue  of  their  survivorship,  in  the  same  way  as  one  of  two 
joint-tenants  of  a  legal  estate  takes  by  survivorship,  unless  it 
is  a  power  only,  and  one  not  coupled  with  an  interest ;  because, 
as  an  almost  invariable  rule,  two  or  more  trustees  hold  as  joint- 
tenants,  and  not  as  tenants  in  common.  If  it  is  such  a  power, 
it  ceases  with  the  death  of  either  of  the  trustees.^  A  power  is 
considered  as  coupled  with  an  interest  where  the  trustees  have 

1  Bailey  v.  Burges,  10  K.  I.  422;  Tainter  v.  Clark,  13  Jlet.  225;  Hill,  Trust. 
473  ;  Co.  Lit.  113  a,  note  146.  See  American  cases  collected  in  Hill,  Trust.  472, 
Wharton's  note  ;  1  Sugd.  Pow.  ed.  1856,  p.  146  ;  Peter  v.  Beverly,  10  Pet.  565; 
Zebach  v.  Smith,  3  Binn.  69  ;  Conover  v.  Hoffman,  1  Bosvv.  214  ;  Jackson  d. 
Cooper  V.  Given,  16  Johns.  167  ;  Story,  Eq.  Jur.  §  1062. 

2  Co.  Lit.  113  a. 

3  Van  Wyck's  Petition,  1  Barb.  Ch.  570. 
*  Hill,  Trust.  226. 

6  Stewart  v.  Pettus,  10  Mo.  755  ;  ayite,  §  1417  ;  Peter  v.  Beverl}',  10  Pet.  564. 
"  I  devise  that  my  executors  shall  sell "  is  a  mere  power.  "  I  devise  to  my  execu- 
tors to  sell  "  gives  an  interest  in  the  land.  Mosby  v.  Mosby,  9  Gratt.  590.  And 
see  Hadley  v.  Hadley,  147  Ind.  423  ;  s.  c.  46  N.  E.  Eep,  823.  See  also  Jackson 
d.  Bogert  v.  Schauber,  7  Cow,  194  ;  Bergen  v.  Bennett,  1  Caines,  Cas.  15,  16  ; 
Story,  Eq.  Jur.  §  1062. 


HOW  CREATED,  DECLARED,  AND  TRANSFERRED.      473 

a  right  to  the  possession  of  the  legal  estate,  or  have  a  right  in 
the  subject  over  which  the  power  is  to  be  executed. ^ 

§  1476.  Equity  never  wants  for  a  Trustee.  —  It  is  a  rule  of 
universal  application,  that  where  there  is  a  trust,  a  court  of 
equity  never  wants  for  a  trustee.^  Thus,  where  a  trust  is  in- 
effectually declared,  or  fails,  or  becomes  incapable  of  taking 
effect,  the  party  taking  it  shall  be  deemed  a  trustee  for  other 
trusts  in  the  will,  or  for  those  who  are  to  take  under  the  dis- 
position of  law.3  And  if,  therefore,  the  one  who  creates  the 
trust  fails  to  appoint  a  trustee,  equity  follows  the  legal  estate, 
and  decrees  that  he  in  whom  it  vests  shall  perform  the  trust.* 
If  a  grant  be  to  one  as  trustee,  and  to  his  successor,  he  cannot 
himself  appoint  such  successor.  Upon  his  ceasing  to  be  trus- 
tee, tliis  duty  and  power  devolve  upon  the  court.^  But  a  court 
cannot  appoint  a  new  trustee  merely  because  the  existing  one 
fails  to  do  his  duty.  The  course  in  such  a  case  is  to  compel 
him  to  perform  it.^  And  if  the  trust  is  created  by  a  will  in 
which  an  executor  is  named,  but  no  trustee,  the  executor  is 
ordinarily  deemed  to  be  the  trustee  by  implication.^  Whether, 
therefore,  the  trustee  named  be  dead,  or  is  an  improper  or  in- 
capable person,  or  refuses  to  act,  the  trust  devolves  upon  the 
court,  whose  duty  it  is  to  supply  a  trustee.^  A  trust  may  be 
valid  and  effectual  where  a  trustee  is  named,  although  the 
cestui  que  trust  may  not  then  be  in  esse,  provided  such  cestui 
que  trust  subsequently  come  into  being.  Thus  a  devise  to 
trustees  in  behalf  of  a  church  or  society  not  yet  formed  or 

1  Gray  v.  Lynch,  8  Gill,  403  ;  Mosby  v.  Mosby,  9  Gratt.  584-59-4  ;  Bloomer  v. 
Waldron',  3  Hill  (N.  Y.),  365. 

2  McGirrr.  Aaron,  1  Penn.  49  ;  Harris  v.  Rucker,  13  B.  Mou.  564;  Story,  Eq. 
Jur.  §  1059  ;  1  Cruise,  Dig.  403,  460  ;  1  Spence,  Eq.  Jur.  501  ;  2  id.  876  ;  Co.  Lit. 
290  &,  note  249,  §4;  Wilson  v.  Towle,  36  N.  H.  129;  Hill,  Trust.  49;  Cloud 
V.  Calhoun,  10  Rich.  Eq.  358;  Miller  v.  Chittenden,  2  Iowa,  315,  370,  376; 
White  V.  Hampton,  10  Iowa,  244  ;  s.  c.  13  Iowa,  261  ;  Mills  v.  Haines,  3  Head, 
335. 

3  Drew  V.  Wakefield,  54  Me.  297. 

*  Co.  Lit.  290  b,  note  249,  §  4  ;  Stone  v.  Griffin,  3  Vt.  400. 

5  Wilson  V.  Towle,  36  N.  H.  129. 

6  Tainter  v.  Clark,  5  Allen,  66. 

'  Nash  z;.  Cutler,  19  Pick.  67;  Hall  v.  Gushing,  9  Pick.  395;  Saunderson  v. 
Stearns,  6  Mass.  37;  Dorr  v.  Wainwright,  13  Pick.  328. 

8  Burrill  v.  Shell,  2  Barb.  457  ;  1  Spence,  Eq.  Jur.  501  ;  1  Cruise,  Dig.  460  ; 
Gibbs  V.  Marsh,  2  Met.  243. 


474  TRUSTS. 

organized  will  be  effectual,  if  such  church  or  society  be  formed 
within  a  reasonable  time.^ 

§  1477.  Court  has  Pow^er  to  appoint  and  remove.  —  The 
court  may  appoint  a  new  trustee  as  a  substitute  for  or  in  addi- 
tion to  an  existing  one,  or  may  appoint  one  where  there  is 
none,  or  may  discharge  an  existing  trustee  upon  his  own  appli- 
cation.2  This  applies  also  where  a  trustee  becomes  a  lunatic, 
or  leaves  the  country,  or  dies  without  heirs,  or  leaves  only  an 
infant  heir.^  This  is  a  power  incidental  to  the  general  author- 
ity of  courts  of  chancery,  although  concurrent  jurisdiction  is  to 
a  large  extent  now  conferred  by  statute.* 

§  1478.  When  no  Conveyance  necessary  from  Old  to  New 
Trustee.  —  By  the  late  English  statutes,  and  in  this  the  statutes 
of  several  of  the  United  States  concur,  where  a  new  trustee  has 
been  appointed  by  the  court  in  the  place  of  a  former  one,  it 
operates  to  pass  to  him  the  legal  estate  which  had  been  in  the 
former  trustee,  without  any  further  act  of  conveyance  or  release 
on  the  part  of  the  latter.^  But  this  applies  only  to  such  trus- 
tees as  are  appointed  under  and  by  virtue  of  the  statute,  and 
not  those  created  by  deed.^ 

§  1479.  When  such  Conveyance  necessary.  —  But  in  the  ab- 
sence of  special  statutory  provision,  the  interest  and  estate  of 
a  trustee  can  only  be  divested  by  a  conveyance  thereof,  even 
though  he  be  removed  from  his  trust,  and  another  appointed 
by  the  court  in  his  place.  To  complete  the  appointment  of 
such  new  trustee,  the  court  directs  and  requires  the  one  in 
whose  place  he  is  appointed  to  execute  a  proper  conveyance  of 

1  Miller  v.  Chittenden,  2  Iowa,  372,  376  ;  ante,  §  1356. 

2  Wms.  Real  Prop.  143  ;  Hill,  Trust.  190,  191,  Wharton's  note  for  American 
cases;  Lewin,  Trusts,  592,  593. 

3  Wins.  Real  Prop.  143  ;  Suarez  v.  Pumpelly,  2  Sandf.  Ch.  336. 

4  Bowditch  V.  Banuelos,  1  Gray,  220  ;  Wms.  Real  Prop.  143  ;  Stat.  13  &  14 
Vict.  c.  60,  15  &  16  Vict.  c.  55  ;  4  Kent,  Com.  311,  note. 

6  Wms.  Real  Prop.  143 ;  Stat.  15  &  16  Vict.  c.  55,  §  1  ;  Mass.  Pub.  Stat. 
c.  141,  §  6  ;  Parker  v.  Converse,  5  Gray,  336,  341.  So  in  South  Carolina.  McNish 
V.  Guerard,  4  Strobh.  Eq.  66.  For  American  statutes,  as  well  as  cases,  upon  the 
appointment  of  new  trustees,  the  reader  is  referred  to  Hill  on  Trustees,  Whart. 
ed.  190,  191,  notes  ;  Lalor,  Real  Est.  194,  195  ;  Golder  v.  Bressler,  105  111.  419  ; 
Collier  v.  Blake,  14  Kan.  250. 

6  Webster  Bank  v.  Eldridge,  115  Mass.  424.  Such  a  statute  does  not  affect  the 
title  to  lands  outside  the  State.     West  v.  Fitz,  109  111.  425. 


HOW  CREATED,  DECLARED,  AND  TRANSFERRED.      475 

the  legal  estate  to  the  new  trustee.^  And  the  abandonment  of 
a  trust  by  one  of  two  trustees  does  not  vest  his  title  in  the 
remaining  trustee.^ 

§  1480.  New  Trustee  stands  in  Place  of  old.  —  When  a  trus- 
tee has  been  appointed  in  the  place  of  another,  and  a  proper 
conveyance  has  been  executed  to  the  new  trustee  of  the  estate 
held  in  trust,  he  ordinarily  becomes  as  completely  substituted 
thereby  in  the  place  of  the  other,  and  with  as  full  powers,  as  if 
he  had  been  invested  originally  with  the  trust.^  The  exception 
to  this  is,  where  the  original  trustee  had  been  vested  with  a 
special  power  indicating  personal  confidence,  which  in  some 
cases  the  new  trustee  may  not  execute,'* 

§  1481.  How  far  Trustee  can  impair  Rights  of  Cestui. — While 
it  is  a  settled  principle  that  courts  of  equity  will  not  enforce  an 
illegal  trust,^  yet,  if  a  trust  is  once  established  as  valid,  neither 
the  act  of  the  law  as  distinguished  from  equity,  nor  of  the  trus- 
tee in  dealing  with  the  estate,  can  impair  or  affect  the  equitable 
estate  of  the  cestui  que  trust,  unless  it  be  by  a  conveyance  for 
a  valuable  consideration  to  one  who  is  ignorant  of  the  trust.^ 
And  this  principle  extends  to  mortgages.^  On  the  other  hand, 
no  conveyance  by  a  cestui  que  trust  can  divest  the  trustee  of 
his  legal  estate.^ 

§  1482.  A  Trustee  may  devise  his  Estate  by  his  last  will,  in 
which  case  his  devisee  becomes  substituted  to  his  place,  if  the 
trust  be  a  several  one  ;  ^  or,  if  he  dies  intestate,  his  estate  will 

1  Hill,  Trust.  186,  196  ;  O'Keefe  v.  Calthorpe,  1  Atk.  17  ;  Lewin,  Trusts,  594  ; 
Ux  parte  Greenhouse,  1  Madd.  109 ;  Lee,  Abst.  252  ;  1  Cruise,  Dig.  460. 

2  Webster  v.  Vandeventer,  6  Gray,  428. 

8  Hill,  Trust.  211  ;  Cole  v.  Wade,  16  Ves,  44. 

*  Lewin,  Trusts,  596  ;  Hill,  Trust.  211 ;  Doyley  v.  Atty.-Gen.,  2  Eq.  Cas.  Abr. 
195  ;  Hibbard  v.  Lambe,  Ambl.  309. 

5  Willi.s  Trust.  38;  Atty.-Gen.  o.  Pearson,  3  Meriv.  399.  For  what  would  be 
illegal  trusts,  see  Willis,  Trust.  38,  Law  Lib.  ed.  note. 

6  Wolfe  V.  Bate,  9  B.  Mon.  208  ;  Major  v.  Deer,  4  J.  J.  Marsh.  585  ;  Boynton 
V.  Hoyt,  1  Denio,  53  ;  2  Fonbl.  Eq.  167  and  n.  ;  1  Cruise,  Dig.  449  ;  Pye  v.  Gorge, 
1  P.  Wms.  128  ;  Hill,  Trust.  282 ;  Thomson  v.  Gilliland,  Addis.  296 ;  Conner  v. 
3  Tuck,  11  Ala.  794 ;  Bumpus  v.  Plainer,  1  Johns.  Ch,  213  ;  Brydges  v.  Brydges, 
7  Ves.  127  ;  Selby  v.  Alston,  3  Ves.  341,  342,  note  ;  Den  d.  Canoy  v.  Troutman, 
Ired.  155. 

T  2  Fonbl.  Eq.  167,  note  ;  Finch  v.  Winchelsea,  1  P.  Wms.  278. 

8  1  Cruise,  Dig.  407. 

9  Lewin,  Trusts,  218;  Harlow  v.  Smith,  2  P.  Wms.  198;  Titley  y.  Wolsten- 
holnie,  7  Beav.  425  ;    1  Cruise,  Dig.  407. 


476  TRUSTS. 

descend  to  his  heirs,  who  are  charged  with  the  trust  for  which 
he  held  it.^  Nor  can  such  heir  disclaim  the  trust,  except  by- 
applying  to  the  court  to  have  another  appointed  in  his  place.^ 
This  does  not  apply,  of  course,  in  the  case  of  several  trustees, 
where,  as  is  usually  the  case,  they  are  joint-tenants,  except  at 
the  death  of  the  last  survivor,  since  in  such  a  case  the  survivor 
takes  the  whole,  and  the  heir  nothing,  unless  he  is  heir  of  the 
last  survivor.  Nor  does  it  apply  where  the  trust  is  a  special 
and  personal  one  in  the  original  trustees.^ 

§  1483.  Effect  of  Conveyance  by  Trustee.  —  As  the  owner  of 
the  legal  estate,  a  trustee  may  convey  the  same,  and  thereby 
pnss  the  legal  title  to  the  same  to  his  grantee.  And  an  inno- 
cent purchaser  from  a  trustee  will  hold  the  estate  discharged 
of  the  trust,  although  it  be  a  constructive  one,  and  made  such 
by  tlie  fraud  of  the  vendor.*  But  if  the  conveyance  be  what 
is  called  a  voluntary  one,  that  is,  without  consideration,  or  if, 
though  with  a  consideration,  it  be  made  to  one  cognizant  of 
the  trust,  the  grantee  will  take  the  estate  subject  to  the  trust, 
and  become  as  to  it  a  trustee  in  place  of  his  grantor.^  It 
has  accordingly  been  held,  that  the  purchaser  of  an  estate 
at  a  sheriff's  sale  takes  it  discharged  of  all  secret  trusts  of 
which  he  had  no  notice.^  And  it  was  further  held,  that  a 
trust  in  respect  to  such  estate  could  not  be  established  by 
parol.''' 

§  1484.  Destruction  of  Trust  by  Merger.  —  If  the  legal  and 
equitable  estates  in  land  become  united  in  the  same  person  in  any 
way,  the  trust  is  extinguished,  since  no  man  can  be  a  trustee 

1  Hill,  Trust.  803  ;  Boone  v.  Chiles,  10  Pet.  213 ;  Duffy  v.  Calvert,  6  Gill,  487; 
Willis,  Trust.  53  ;  4  Kent,  Com.  311  (8th  ed.),  note;  Shortz  v.  Unangst,  3  Watts 
&  S.  45. 

2  Lewin,  Trusts,  238 ;  Hill,  Trust.  303. 
8  Hill,  Trust.  303. 

*  Dennis  v.  McCagg,  32  111.  445.  See  a7ite,  §  1435.  AYhere  A  bought  land 
with  B's  money,  and  made  a  declaration  of  trust  in  B's  favor,  and  subsequently 
conveyed  the  land  to  C,  B's  wife,  it  was  held  that  B  could  not  sue  A  at  law  for 
money  had  and  received,  but  should  bring  a  bill  in  equity.  Norton  v.  Ray,  139 
Mass.  230. 

6  Willis,  Trust.  84  ;  Hill,  Trust.  175,  282;  Co.  Lit.  290  b,  n.  249,  §  2  ;  Hallett 
V.  Collins,  10  How.  (U.  S.)  174  ;  Heth  v.  Richmond,  F.&  P.  R.  R.  Co.,  4  Gratt. 
482  ;    Den  d.  Canoy  v.  Troutman,  7  Ired.  155  ;  Lee,  Abst.  237. 

6  Smith  V.  Painter,  5  Serg.  &  R.  223. 

''  Leshey  v.  Gardner,  3  Watts  &  S.  314. 


HOW  CREATED,  DECLARED,  AND  TRANSFERRED.      477 

for  himself,^  and  the  equitable  is  merged  in  the  legal  estate.^ 
Thus  where  one,  who  was  a  trustee  for  his  children,  made  a 
general  devise  of  his  estate  to  them,  and  died,  it  was  held,  that 
whether  the  legal  estate  thereby  became  vested  in  them,  or 
descended  to  them  by  act  of  law,  the  legal  estate  having  be- 
come united  with  the  equitable  one,  the  latter  was  merged  in 
the  former,  and  the  children  thereby  became  absolute  owners 
thereof.3  And  the  same  would  be  the  effect  if  the  trustee  buy 
the  interest  of  the  cestui  que  trust,  which  he  may  do  if  done 
with  good  faith.4  But,  to  have  the  union  operate  a  merger, 
the  estates  must  unite  in  one  and  the  same  person,  having  a 
commensurate  and  coextensive  interest  in  each,  with  no  inter- 
vening interest  in  another.  A  legal  estate  in  fee  in  one  who 
has  only  a  partial  equitable  interest,  or  vice  versa,  would  not 
merge.^  To  have  this  effect,  moreover,  the  trustee  must  not 
have  acquired  the  estates  by  violating  any  duty  belonging  to 
him  as  trustee ;  as,  for  instance,  by  purchasing  himself  the 
trust-property  held  by  him  in  trust  to  sell.^  If  the  trustee  be 
one  of  the  beneficiaries  of  the  trust,  he  is  the  absolute  owner 
of  a  share  of  the  estate  equal  to  his  interests  But  whenever 
it  would  work  injustice,  or  defeat  the  intention  of  a  donor  to 
work  a  merger,  the'  two  estates  will  be  kept  alive  although  they 
come  together  in  one  person.^ 

1  Healey  v.  Alston,  25  Miss.  190;  3  Prest.  Conv.  314,  327;  Butler  v.  Godley, 
1  Dev.  94  ;  Nicholson  v.  Halsi^y,  1  Johns.  Ch.  422  ;  Brydges  v.  Brydges,  3  Yes. 
126  ;  1  Spence,  Eq.  Jur.  508  ;  2  Flint.  Real  Prop.  774  ;  Hill,  Trust.  Whart.  ed. 
252  and  note  for  American  cases;   Levvin,  Trusts,  18. 

2  Hoiikinson  v.  Dumas,  42  N.  H.  306,  308 ;  Nicholson  v.  Halsey,  1  Johns.  Ch. 
417  ;  Gardner  v.  Astor,  3  Johns.  Ch.  53. 

8  Cooper  V.  Cooper,  5  N.  J.  Eq.  9. 

*  Lewin,  Trusts,  363,  364  ;  Downes  v.  Grazebrook,  3  Meriv.  208.  See  Ayliffe 
V.  Murray,  2  Atk.  59. 

5  Lewin,  Trusts,  18  ;  Hill,  Trust.  252  ;  Selby  v.  Alston,  3  Yes.  339,  342,  note  ; 
Goodright  v.  Wells,  Doug.  771  ;  Donalds  v.  Plumb,  8  Conn.  453  ;  Brydges  v. 
Brydges,  3  Yes.  126  ;  James  v.  Morey,  2  Cow.  284;  Hunt  v.  Hunt,  14  Pick.  374, 
384. 

6  1  Spence,  Eq.  Jur.  572  ;  2  Flint.  Real.  Prop.  811. 

T  Mason  v.  Mason,  2  Sandf.  Ch.  432,  459  ;  s.  c.  Mason  v.  Jones,  2  Barb.  229, 
242 ;  James  v.  Morey,  2  Cow.  284,  per  Woodworth,  J. 

*  Lewin,  Trusts,  19  ;  Brydges  v.  Brydges,  3  Yes.  126,  127  ;  Donalds  v.  Plumb, 
8  Conn.  453;  James  v.  Morey,  2  Cow.  318;  Hunt  v.  Hunt,  14  Pick.  374,  383; 
Gibson  v.  Crehore,  3  Pick.  475  ;  Star  v.  Ellis,  6  Johns.  Ch.  393  ;  Forbes  v.  Mof- 
fatt,  18  Yes.  Sumn.  ed.  384  and  note;  3  Prest.  Conv.  557;  Laussat,  Fonbl.  Eq. 
426  and  notes.     Earle  v.  Washburn,  7  Allen,  97. 


478  TRUSTS. 

§  1485.  Husband  as  Trustee  for  the  Wife.  — Where  an 
estate  is  conveyed  to  a  married  woman,  expressly  to  her  sole 
and  separate  use,  a  court  of  equity  will  hold  her  husband  as 
her  trustee,  and  not  allow  him  to  claim  the  rents  and  profits 
thereof  as  his  own  ;  and  if  he  become  bankrupt,  these  will  not 
pass  to  his  assignees.^  So  a  husband,  before  marriage,  may, 
by  contract  in  writing,  invest  his  future  wife  with  the  power 
of  separate  enjoyment  and  disposal  of  an  estate,  which  power 
equity  will  support  and  enforce  if  it  is  distinct  and  unequivocal 
in  its  character.2  But  the  law  does  not  change  the  legal  estate 
into  an  equitable  one,  or  affect  the  legal  ownership  of  the  same, 
by  making  the  husband  her  trustee  in  respect  to  the  same.^ 

1  2  Flint.  Real  Prop.  797;  Willis,  Trust.  33  ;  Sand.  Uses,  349  ;  Bennet  v. 
Davis,  2  P.  Wms.  316  ;  Porter  v.  Rutland  Bk.,  19  Vt.  410. 

2  2  Flint.  Real  Prop.  798,  799. 

3  Tud.  Lead.  Cas.  485. 


RIGHTS,   POWEKS,   AND   DUTIES   OF   PAIITIES   TO    TRUSTS.      479 


CHAPTER  LX. 

TRUSTS  —  RIGHTS,   POWERS,    AND    DUTIES    OF    PARTIES    TO    TRUSTS. 

§  1486.  Who  may  be  trustees,  who  ccstuis  que  trust. 

1487.  Same  subject,  contiuued. 

1488.  Corporations. 

1489.  Aliens. 

1490.  The  trust  estate  at  law  and  in  equity. 

1491.  Power  and  duty  of  trustee  to  protect  legal  estate. 

1492.  Trust  cannot  be  delegated. 

1493.  Joint  trustees  must  act  jointly. 

1494.  In  public  trusts,  majorities  may  act. 

1495.  Of  several  trustees  as  joint-tenants. 

1496.  Distinction  between  powers  and  trusts. 

1497.  Of  supplying  places  of  joint  trustees. 

1498.  Trustees  not  responsible  for  each  others'  acts. 

1499.  Courts  of  equity  supervise  trusts. 

1500.  In  equity,  the  cestui  que  trust  is  owner. 

1501.  Trustee  may  not  profit  by  his  trust. 

1502.  Of  cestui  que  trust's  right  to  possession. 

1503.  Where  it  is  a  simple  or  dry  trust. 

1504.  Special  trust  —  Proprietary  power  of  trustee. 

1505.  When  purchaser  bound  to  see  to  application  of  purchase-money. 

1506.  Trustee's  compensation  —  Indirect  profits. 

§  1486.    Who    may  be   Trustees,  who   Cestuis   que  Trust.  —  It 

remains  to  be  considered  what,  if  a  trust  as  to  lands  is  estab- 
lished, are  the  respective  rights,  powers,  and  duties  of  the 
trustees  and  cestuis  que  trust  in  respect  to  such  trust-estates. 
In  the  first  place,  all  persons  capable  of  confidence  and  of 
holding  real  estate  may  be  trustees.  Married  women  may  be 
trustees,  even  for  their  husbands ;  but  courts  will  never  ap- 
point them  as  such.^  So  any  person  capable  of  taking  any 
conveyance  of  land  may  acquire  an  equitable  interest  therein, 
and  become  a  cestui  que  trust. ^  An  infant  may  be  a  trustee, 
and  compellable  to  execute  his  trust  ;^  although  he  will  never 
be  appointed  by  the  court.  ^ 

1  Perr}^  Trusts,  §  51.      '  2  Willis,  Trust.  34  ;    Hill,  Trust.  52. 

8  Irvine  v.  Irvine,  9  Wall.  619.  *  Perry,  Trusts,  §  53. 


480  TRUSTS. 

§  1487.  Same  Subject.  —  It  is  iio  objection  to  a  person  being 
a  cestui  que  trust  that  he  is  unknown  or  unascertained,  or  even 
not  in  esse,  when  the  trust  is  created  in  his  favor.  The  trust 
takes  effect  in  him  whenever  he  is  ascertained  or  comes  into 
being.  Nor  will  it  affect  the  validity  of  the  trust  that  the 
cestui  que  trust  is  ignorant  of  its  creation,  since  he  can  enforce 
it  when  it  comes  to  his  knowledge.^ 

§  1488.  Corporations  are  capable  of  being  trustees  of  real 
estate,  or  cestuis  que  trust,  subject  to  the  provisions  of  the 
statute  of  mortmain,  so  far  as  they  are  adopted  in  the  United 
States,  and  also  subject  to  the  limitation  that  the  trust  shall  be 
within  the  scope  of  the  purposes  of  the  corporation  as  expressed 
in  the  charter.^  Thus  towns  and  cities  may  hold  property  in 
trust  for  the  education  and  relief  of  the  poor  ;  ^  a  savings  bank 
may  be  a  trustee  of  the  deposits.* 

§  1489.  Aliens  are  generally  capable  of  holding  lands  in 
trust  whenever  they  are  capable  of  holding  the  legal  title  to 
lands,  and  in  nearly  all  of  the  United  States  they  are  capable 
of  holding  such  title.^ 

§  1490.  The  Trust  Estate  at  Law  and  in  Equity.  —  By  the  com- 
mon law,  the  trustee,  as  owner  of  the  legal  estate,  might  convey 
or  incumber  it  during  his  life,  and  dispose  of  it  at  his  death  ;  or, 
in  case  of  his  dying  intestate,  it  would  descend  to  his  heirs.^ 
But  in  equity,  whoever  purchases  or  acquires  the  legal  estate 
from  the  trustee,  with  the  exceptions  mentioned  on  a  former 
page,  holds  it  himself  as  trustee  for  the  benefit  of  the  cestui 
que  trust ;  and  neither  he  nor  his  grantee  can  incumber  it,  or 
charge  it  with  his  own  debts,  or  render  it  subject  to  the  dower 

1  Willis,  Trust.  35  ;  Hill,  Ti  ust.  52,  and  note  for  American  cases  ;  Aslihurst 
V.  Given,  5  Watts  &  S.  323 ;  Bryant  v.  Russell,  23  Pick.  508,  520.  Devises  for 
charitable  and  religious  uses  come  under  this  rule.  Vidal  v.  Girard,  2  How.  193, 
196;  Bartlet  v.  King,  12  Mass.  537  ;  Going  v.  Emery,  16  Pick.  107,  118;  Inglis 
V.  Sailors'  Snug  Harbor,  3  Pet.  99;  Miller  v.  Chittenden,  2  Iowa,  315  et  seq. 

2  Phillips  Acad.  v.  King,  12  Mass.  546  ;  Sutton  First  Parish  v.  Cole,  3  Pick. 
232  ;  Willis,  Trust.  33-35 ;  1  Cruise,  Dig.  403  ;  Amherst  Acad.  v.  Cowls,  6  Pick. 
427  ;   Vidal  v.  Girard,  2  How.  127;  Aug.  &  Ames,  Corp.  §  168. 

3  Piper  V.  Moulton,  72  Me.  155  ;  Boxford  Relig.  Soc.  v.  Harriman,  125  Mass. 
321  ;  Atty.-Gen.  v.  Butler,  123  Mass.  305. 

*  Stone  V.  Bishop,  4  Cliff.  C.  C.  593.     See  Perry,  Trusts,  §§  42-47. 
6  See  ante.  §  132.     In  Indiana,  non-residents  of  the  State  cannot  be  appointed 
trustees,  excey>t  by  will,  or  by  a  decree  of  court.     Piinker  v.  Dissell,  90  Ind.  375. 
6  Ante,  §  1482. 


RIGHTS,    POWERS,    AND    DUTIES    OF    PARTIES    TO    TRUSTS.       481 

or  curtesy  of  his  wife  or  her  husband.  Tlie  trust  fastens  upon 
the  land,  and  supersedes  all  these  charges  and  incumbrances. ^ 
But  a  conveyance  in  which  both  the  trustee  and  cestui  que  trust 
join  will  pass  a  clear  title  to  the  purchaser,  if  they  are  other- 
wise competent  to  make  a  deed.^ 

§  1491.  Power  and  Duty  of  Trustee  to  protect  Legal  Estate.  — 
Thus  a  trustee  may  not  only  bring  and  maintain  an  action  in 
a  court  of  law  respecting  the  estate  held  in  trust,  but  he  is  the 
only  one  who  can  maintain  such  action,  since  a  cestui  que  trust, 
though  in  equity  the  owner  of  the  estate,  is  a  stranger  to  it  in 
the  eye  of  the  law,  or  at  best  a  mere  tenant  at  will  or  at  suffer- 
ance. And  while  holding  under  his  trustee,  he  cannot  be  said 
to  be  so  adversely  possessed  as  to  affect  a  conveyance  made  by 
the  trustee  of  the  legal  estate.^  But  one  trustee  cannot  sue  a 
co-trustee  in  trespass,  in  respect  to  the  trust-estate  so  long  as  he 
remains  a  trustee.*  The  trustee  may  recover  in  ejectment  in  a 
court  of  law  against  his  own  cestui  que  trust}  And,  as  a  duty 
corresponding  to  this  legal  ownership  of  the  trust  estate,  a 
trustee  is  bound  to  cause  the  taxes,  the  interest  on  incum- 
brances, assessments,  and  expenses  of  repairs  upon  the  prem- 
ises, to  be  paid  out  of  the  income  of  the  estate.^ 

§1492.  Trust  cannot  be  delegated. — In  those  cases  where 
there  is  a  confidence  in  the  trustee,  and  this  is  always  deemed 
to  be  the  case,  unless  the  instrument  creating  the  trusts  author- 
izes the  employment  of  another  and  a  delegation  of  power  to 
such  third  person,  the  office  and  duty  of  a  trustee  cannot  be 
delegated  except  so  far  as  relates  to  ministerial  acts,  where  he 
may  employ  an  agent  who  governs  himself  by  his  advice  and 
direction  in  the  management  of  the  trust,  he  being  responsible 
for  his  agent's  acts.'     Thus,  where  testator  devised  his  estate 

1  Ante,  §  14S3.  2  Parker  u.  Converse,  5  Gray,  336. 

3  Newton  v.  McLean,  41  Barb.  289. 

*  Pultney  M.  E.  Church  i-.  Stewart,  27  Barb.  553. 

6  Lewin,  Trusts,  475  ;  1  Cruise,  Dig.  414  ;  Mordecai  v.  Parker,  3  Dev.  425  ; 
Kussell  V.  Lewis,  2  Pick.  508,  510  ;  Allen  v.  Imlett,  1  F.  L.Holt,  641  ;  Hill,  Trust. 
274,  and  Wharton's  note  for  American  cases.  But  see  Kennedy  v.  Fury,  1  Dall. 
72  ;  ante,  §  781  ;  Fitzpatrick  v.  Fitzgerald,  13  Gray,  400  ;  Peabody  w.  Harv.  Coll., 
10  Gray,  283;  Essex  Co.  v.  Durant,  14  Gray,  447;  Brown  v.  Combs,  29  X.  J. 
36,  40. 

®  Hepburn  v.  Hepburn,  2  Bradf.  74. 

7  Hill,  Trust.  175,  540  ;  Cole  v.  Wade,  16  Ves.  Sumn.  ed.  28  and  note  ;  Lewin, 
VOL.  II.  —  31 


482  TRUSTS. 

to  his  executors  to  sell,  they  may  act,  in  so  doing,  by  attorney  ; 
but  it  would  be  otherwise  in  executing  a  naked  power.^ 

§  1493.  Joint  Trustees  must  act  jointly.  — Where  several  arc 
named  as  trustees,  they  constitute  together  but  one  trustee, 
and  must  execute  the  trust  together  in  order  to  act  at  all,  the 
act  of  one  having  no  effect.^  A  sale,  therefore,  by  one  of  two 
trustees,  would  be  void,  since  trustees  cannot  act  separately,^ 
unless  the  authority  be  "  to  them  or  either  of  them ;  "  *  and 
althougli  joint-tenants,  neither  can  sell  his  interest  in  lands 
held  by  them  as  trustees.^  And  in  Kentucky,  if  one  of  two 
trustees  vacate  the  office,  the  other  is,  by  statute,  authorized  to 
act.^ 

§  1494.  In  Public  Trusts,  Majorities  may  act.  —  But  this 
strictness  applies  only  to  cases  of  private  trustees,  and  in  relation 
to  private  trusts.  If  the  trust  be  of  a  public  nature,  it  may 
be  executed  by  a  major  part  of  those  constituting  the  trust.^ 

§  1495.  Of  Several  Trustees  as  Joint-tenants.  —  As  a  general 
rule,  moreover,  if  several  are  named  as  trustees,  and  one  or 
more  of  them  die,  the  legal  estate  and  trust  go  to  the  survivors, 
as  being  joint-tenants  thereof.^  But  this  may  be  limited  by 
restricting  the  execution  of  the  trust  to  all,  in  which  case  the 
death  of  either  prevents  the  others  from  acting ;  or  to  tlie  sur- 
vivors in  the  plural  number,  when  it  may  be  executed  so  long 
as  two  survive,  but  a  sole  survivor  cannot  act.^ 

Trusts,  228;  1  Sugd.  Fow.  ed.  1856,  214  ;  Bohlen's  Est.,  75  Penn.  St.  304  ;  Sin- 
clair V.  Jackson,  8  Cow.  582. 

1  Berger  v.  Duff,  4  Johns.  Ch.  368  ;  May  v.  Frazee,  4  Litt.  391. 

2  Lewin,  Trusts,  237  ;  Hill,  Trust.  (Whart.  ed.)  305,  and  note  for  American 
cases  ;  Story,  Eq.  Jur.  §  1280  ;  Sinclair  v.  Jackson,  8  Cow.  543  ;  1  Cruise,  Dig. 
455  ;  Latrobe  v.  Tiernan,  2  Md.  Ch.  474;  Peter  v.  Beverly,  10  Pet.  532  ;  Green  v. 
Miller,  6  Johns.  39  ;  Boston  v.  Robbins,  126  Mass.  384. 

3  Ridgeley  v.  Johnson,  11  Barb.  527;  Wilbur  v.  Almy,  12  How.  180. 
*  Taylor  v.  Dickinson,  15  Iowa,  484. 

6  Sinclair  v.  Jackson,  8  Cow.  583. 
6  Wells  V.  Lewis,  4  Met.  (Ky.)  271. 

"  Hill  V.  Josselyn,  13  Sm.  &  M.  597  ;  Chambers  v.  Perry,  17  Ala.  726  ;  Lewin, 
Trusts,  37  ;  Wilkinson  v.  Malin,  2  Tyrwh.  544. 

8  Colder  v.  Bressler,  105  111.  419  ;  Zabriskie  v.  Morris  &  Essex  E.  R.  Co., 
33  N.  J.  Eq.  22.  And  if  the  survivor  dies,  the  trust-estate  goes  to  the  heir  at  law. 
Ibid.  A  trust  involving  discretion  in  the  executor  as  trustee  does  not  go  to  the 
administrator  with  the  will  annexed.     Stoutenburgh  v.  Moore,  37  N.  J.  Eq.  63. 

9  Lewin,  Trusts  (2d  ed.),  239;  Co.  Lit.  113  a  ;  Hill,  Trust.  303,  and  Wharton's 
note ;  Peter  v.  Beverly,  10  Pet.  564 ;  PrauRlin  v.  Osgood,  14  Johns.  553  ;  Cole  v. 


RIGHTS,   POWERS,    AND    DUTIES   OF   PARTIES    TO    TRUSTS.      483 

§  1496.  Distinction  between  Powers  and  Trusts.  —  But  where 
a  power  without  an  interest  is  given  to  several,  they  must  all 
join  in  executing  it ;  and  it  does  not  survive  if  one  dies  before 
the  execution,  unless  the  survivors  are  expressly  authorized  to 
act  by  the  instrument  appointing  them.^  Another  important 
distinction  between  trusts  and  powers  is,  that  trusts  are  always 
imperative,  and  bind  the  conscience  of  the  trustee,  and  may  be 
enforced  accordingly ;  whereas  powers  leave  the  act  to  be  done 
a  matter  of  election  with  the  party  to  whom  they  are  given.^ 

§  1497.  Of  supplying  Places  of  Joint-trustees.  —  The  same 
rule  applies  as  to  joint-trustees  if  one  or  more  decline  to  act. 
But  it  seems  that  there  is  a  power  in  courts  of  equity  to  substi- 
tute and  supply  trustees  in  all  cases  where  it  is  necessary  to 
effect  the  intention  of  the  trust,  unless  there  is  a  special  confi- 
dence implied  in  the  trustees  named  ;  in  which  case,  if  they 
refuse  to  act,  or  die,  the  trust  may  fail.^  And  the  rule  is  laid 
down  as  a  universal  one,  that,  "  as  trusts  are  now  regulated, 
all  persons  who  take  through  or  under  the  trustee  shall  be 
liable  for  the  execution  of  the  trust."  * 

§  1498.  Trustees  not  responsible  for  each  others'  Acts.  —  As  a 
general  proposition,  where  there  are  two  or  more  trustees, 
neither  is  responsible  for  the  acts  of  the  others,  nor  for  their 
defaults,  unless  he  joins  with  them  in  the  act  done  or  unless 
the  act  complained  of  was  done  by  reason  of  his  own  default  or 
violation  of  duty  ;  though  to  explain  and  illustrate  the  limita- 
tions and  qualifications  of  this  rule,  as  well  as  the  various  forms 
in  which  it  is  implied,  would  extend  this  inquiry  beyond  its 
proposed  limits.^ 

Wade,  16  Ves.  (Sunin.  ed.)  28,  note  ;  Lee,  Abst.  237  ;  Zebach  i;.  Smith,  3  Binn. 
69;  Berger  v.  Duff,  4  Johns.  Ch.  368. 

1  Stewart  v.  Pettus,  10  Mo.  755  ;  Lep,  Abst.  338  ;  Cole  v.  Wade,  16  Ves.  27  ; 
Townsend  v.  Wilson,  1  Barn.  &  Aid.  608  ;  Lewin,  Trusts  (2d  ed.),  239  ;  Co.  Lit. 
112  b  ;  Osgood  v.  Franklin,  2  Johns.  Ch.  20;  Franklin  v.  Osgood,  14  Johns.  553  ; 
Peter  v.  Beverly,  10  Pet.  564 ;  Zebach  v.  Smith,  3  Binn.  69  ;  Williams  v.  Otey, 
8  Humph.  563  ;  Gray  v.  Lynch,  8  Gill,  403  ;  4  Kent,  Com.  325  ;  1  Sugd.  Pow. 
143. 

2  Stanley  v.  Colt,  5  Wall.  168  ;  2  Sugd.  Pow.  588. 

8  Hill,  Trust.  191,  211,  and  Wharton's  note  for  American  cases,  211  ;  Lewin, 
Trusts  (2d  ed.),  239  ;  Ex  parte  Schouler,  134  Mass.  426  ;  Burrill  v.  Sheil,  2  Barb. 
457  ;  Lee,  Abst.  238. 

*  Lewin,  Trusts  (2d  ed.),  218. 

6  Story,  Eq.  Jur.  §  1280  ;  Ward  v.  Lewi.s,  4  Pick.  518,  524;  S{ialdingt>.  Shalmer, 


484  TRUSTS. 

§  1499.  Courts  of  Equity  supervise  Trusts.  —  Though  COUrts 
of  law  have  cognizance,  as  has  been  shown,  of  the  legal  estates 
of  trustees,  courts  of  equity  exercise  control  over  trustees 
whenever  it  is  necessary,  in  order  to  enforce  the  execution  of 
trusts,  or  grant  relief  where  trustees  neglect  or  violate  such 
trusts.^  And  it  is  always  competent  for  trustees,  in  matters 
of  doubt,  to  ask  and  receive  directions  from  courts  of  equity  in 
the  execution  of  their  trusts.^  And  whether  a  trustee  has  an 
equitable  right  or  not  to  convey  a  trust-estate,  is  a  question 
purely  within  the  cognizance  of  equity.^  So  is  the  question, 
whether  a  grantee  in  a  deed  of  trust  has  undertaken  the  trust 
or  not.*  And  this  jurisdiction  these  courts  will  exercise  in  aid 
of  a  cestui  que  trust  against  a  trustee  or  any  other  person  who 
derives  any  benefit  from  the  trustee's  acts.^ 

§  1500.  In  Equity,  the  Cestui  que  Trust  is  O-wner.  —  But  it  is 
the  cestui  que  trust  who  is,  in  the  eyes  of  equity,  the  owner  of 
the  estate,  so  far  as  the  ownership  may  be  necessary  to  insure 
to  him  that  enjoyment  of  the  estate  which  the  donor  or  devisor 
intended.  In  contemplation  of  a  court  of  equity,  a  cestui  que 
trust  is  actually  seised  of  the  freehold.  He  may  alien  it,  and 
any  conveyance  by  him  made  will  have  the  same  operation,  in 
equity,  upon  the  trust,  as  a  like  conveyance  would  have  had,  at 
law,  upon  the  legal  estate.  It  is  descendible,  devisable,  and 
alienable  ;  and,  generally,  whatever  is  true  at  law  of  the  legal 
estate  is  true  in  equity  of  the  trust-estate.^ 

§  1501.  Trustee  may  not  profit  by  his  Trust.  —  Equity  will  not 
allow  the  trustee  the  least  personal  advantage  from  the  trust- 
estate, —  a  rule  which  is  universal  and  absolute,  subject  to  no 
qualifications  or  exceptions.''     Even  the  right  of  homestead, 

1  Vera.  303;  1  Cruise,  Dig.  455,  note;  Kip  v.  Deniston,  4  Johns.  23;  Willis, 
Trust.  194 ;  Latrobe  v.  Tiernan,  2  Md.  Ch.  474  ;  Hill,  Trust.  309,  Wharton's  note 
for  American  cases;  Towne  v.  Ammidown,  20  Pick.  535. 

1  Co.  Lit.  290  b,  n.  249,  §  5  ;  Presley  v.  Stribling,  24  Miss.  527  ;  Robinson  v. 
Mauldin,  11  Ala.  977 ;  Jones  v.  Dougherty,  10  Ga.  273 ;  Tucker  v.  Palmer, 
3  Brev.  47. 

2  Atty.-Gen.  v.  Moore,  19  N.  J.  Eq.  519. 
^  Den  <1.  Canoy  v.  Troutman,  7  Ired.  155. 
*  McLean  v.  Nelson,  1  Jones  (S.  C. ),  396. 

5  Bush  V.  Bush,  1  Strob.  Eq.  377. 

6  Croxall  V.  Shererd,  5  Wall.  281. 

7  Davis  V.  Wright,  2  Hill  (S.  C),  560  ;  Arnold  v.  Brown,  24  Pick.  89  ;  Green 


EIGHTS,    POWERS,    AND    DUTIES   OP   PARTIES   TO    TRUSTS,      486 

favored  as  it  is  by  law,  does  not  attach  to  the  estate  of  a  trus- 
tee.^ This  principle  is  extended  by  the  courts  to  the  "  extrem- 
est  length,"  in  holding  agents  and  those  occupying  fiduciary 
relations  to  the  property  to  the  strictest  fairness  and  integrity 
towards  their  principals,  and  to  prevent  them  from  making  use 
of  their  position  to  benefit  themselves  at  the  expense  or  disad- 
vantage of  their  principals.^  And  this  applies  also  to  one  who 
acts  as  next  friend  of  an  infant  in  making  partition  of  lands.^ 
Accordingly,  if  he  buys  in  an  incumbrance  on  the  estate  for  a 
less  sum  than  is  actually  due  upon  it,  it  enures  to  the  benefit 
of  the  cestui  que  trust}  If  he  lays  out  trust  money  in  buying 
lands,  and  sells  the  same,  and  makes  a  profit  thereby,  the  cestui 
que  trust  is  entitled  to  it.°  So  if  he  buys  what  he  has  been 
constituted  trustee  to  sell,  and  makes  an  advance  by  selling  it 
again,  his  cestui  que  trust  can  compel  him  to  account  for  such 
advance.^  [The  rule  that  a  trustee  shall  not  be  permitted 
directly  or  indirectly  to  derive  a  personal  advantage  from  his 
fiduciary  relation  has  already  been  fully  considered,  ante,  §  1430 
et  seq.  But  it  must  always  be  borne  in  mind  that  a  bona  fide 
purchaser  or  mortgagee  of  the  trust  property  without  notice, 
actual,  implied,  or  constructive,  of  the  existence  of  the  trust 
takes  an  estate  discharged  of  the  trust,  provided  he  pays  a  val- 
uable consideration  therefor.'] 

§  1502.  Of  Cestui  que  Trust's  Right  to  Possession.  —  Although 
it  is  so  often  laid  down  by  courts  and  writers  that  cestuis  que  trust 
have  a  right  to  compel  their  trustees  to  suffer  them  to  occupy 
the  trust-estates,  and  to  require  of  them  to  make  conveyances 
thereof  as  the  cestuis  que  trust  shall  direct,^  and  it  has  accord- 

V.  Winter,  1  Johns.  Ch.  26  ;  Oliver  v.  Piatt,  3  How.  333  ;  Hill,  Trust.  535  ;  Lewin, 
Trusts  (2d  ed.),  258;  Conger!;.  Ring,  11  Barb.  356;  Shelton  v.  Homer,  5  Met. 
462  ;  Jamison  v.  Glascock,  29  Mo.  191. 

1  Shepherd  v.  White,  11  Tex.  354. 

2  Fairnian  v.  Bavin,  29  111.  76 ;  Saltmarsh  v.  Beene,  4  Port.  292. 
8  Collins  V.  Smith,  1  Head,  251. 

*  Green  v.  Winter,  1  Johns.  Ch.  20;  Lewin,  Trusts  (2ded.),  258  ;  Wiswall  v. 
Stewart,  32  Ala.  433  ;  Baugh  v.  Walker,  77  Va.  99.  So  if  he  foreclose  a  mortgage 
belonging  to  the  trust,  buy  the  land  and  sell  it,  the  profits  belong  to  the  trust. 
Parker  v.  Johnson,  37  N.  J.  Eq.  366. 

5  Lewin,  Trusts  (2d  ed.),  259  ;  Moffit  v.  McDonald,  11  Humph.  457. 

6  Wasson  v.  English,  13  Mo.  176. 

'  Walker  v.  Walker,  101  JIass.  169. 

8  1  Cruise,  Dig.  448  ;  Lewin,  Trusts  (2d  ed.),  470  ;  Hill,  Trust.  278. 


486  TRUSTS, 

ingly  been  held  that  a  sale  by  a  trustee,  by  consent  of  a  cestui 
que  trust,  would  pass  a  good  title,^  it  is  apprehended  that  the 
general  proposition  can  be  true,  to  its  full  extent,  only  in  re- 
spect to  simple,  or  what  are  sometimes  called  dri/  trusts,  where 
the  cestui  que  trust  is  entitled  to  the  exclusive  benefit  of  the 
land,  and  the  trustee  is,  by  nature  of  the  trust,  merely  passive 
in  respect  to  it.'^  The  cases  above  referred  to  are  those  where 
the  pernancy  of  the  profits,  and  the  disposition  of  the  estate, 
the^MS  hahendi  and  the  jus  dispotiendi,  are  intended  to  be  in  the 
cestui  que  trust ;  for,  when  other  parties  are  interested  in 
the  estate,  it  rests  in  the  discretion  of  the  court  whether  the 
actual  possession  shall  remain  with  the  cestui  que  trust  or  the 
trustee  ;  and  if  possession  be  given  to  the  cestui  que  trust, 
whether  he  shall  not  hold  it  under  certain  conditions  and 
restrictions.^  But  where  land  was  conveyed  to  A  in  trust  for 
B  during  her  life,  and  then  in  trust  for  such  of  her  children  as 
should  be  living  at  her  death,  the  court  refused  her  application 
to  have  the  trustee  convey  the  estate  to  her  as  tenant  in  tail  to 
enable  her  to  bar  the  remainder,  it  being  a  contingent  one."* 

§  1503.  Where  it  is  a  Simple  or  Dry  Trust,  courts  of  equity 
will  give  the  cestui  que  trust  possession,  or  require  the  trustee 
to  convey  the  estate  as  the  cestui  que  trust  may  direct.^  But  a 
trustee  can  only  be  divested  of  his  right  of  possession  by  a  de- 
cree of  a  court  of  equity.^  If  trusts  are  passive,  the  cestuis  que 
trust  have  a  right  to  control  the  estate  ;  if  active,  then  the  trus- 
tees. Passive  trustees  cannot  recover  the  land  from  the  pos- 
session of  the  cestui  que  trust  or  his  assignee,  and  such  cestui 
que  trust  may  compel  the  trustee  to  convey  the  estate  for  his 
benefit.  The  trust  which  arises  in  favor  of  one  who  pays  the 
consideration  upon  the  purchase  of  an  estate  is  a  passive  one.'^ 

1  Arringtori  v.  Cherry,  10  Ga.  429. 

2  Lewin,  Trusts  (2d  ed.),  470  ;  1  Cruise,  Dig.  449  ;  Hill,  Trust.  273,  279  ;  Bat- 
tle V.  Petway,  5  Ired.  576  ;  Vau.x  v.  Parke,  7  Watts  &  S.  19;  Baruett's  App.,  46 
Penn.  St.  399. 

8  Lewin,  Tru.sts  (2d  ed.),  470,  480  ;  Hill,  Trust.  278  ;  Battle  v.  Petwaj',  5  Ired. 
576  ;  Williamson  v.  Wilkins,  14  Ga.  416  ;  Shankland's  App.,  47  Penn.  St.  113. 
*  Harris  v.  McElroy,  45  Penn.  St.  216. 

5  Hill,  Trust.  278  ;  Lewin,  Trusts  (2ded.),  470;  Stewart  w.  Chadwick,  8  Iowa, 
469. 

6  Giipliill  V.  Isbell,  1  Bail.  230  *  Presley  v.  Stribling,  24  Miss.  527. 

''  Fitzpatrick  v.  Fitzgerald,  13  Gray,  400  ;  Sawyer  v.  Skowhegan,  57  Me.  500. 


RIGHTS,   POWERS,    AND    DUTIES    OF    PARTIES   TO    TRUSTS.      487 

In  a  court  of  law,  on  the  contrary,  a  cestui  que  trust  is  a  tenant 
at  will  or  at  sufferance  of  his  trustee  ;  and  the  latter  may  re- 
cover against  him  in  an  action  of  ejectment  for  the  possession 
of  the  premises,  and  he  wull  not  be  admitted  to  deny  his  trus- 
tee's title.  And  if,  in  the  case  of  an  express  trust,  he  enters 
into  the  premises  in  accordance  with  the  terms  thereof,  the 
mere  possession  by  him,  and  receiving  the  rents  and  profits, 
cannot  be  adverse.^  Nor  can  a  cestui  que  trust  maintain  such 
an  action  in  his  own  name  against  any  other  tenant ;  for,  in 
ejectment,  the  legal  title  alone  is  the  matter  regularly  put  in 
issue. ^  If  he  sues  at  all,  it  must  be  in  the  name  of  his  trustee, 
even  though  the  trust  be  that  of  a  mortgage.^  The  law  in  some 
of  the  States  admits  of  an  exception  to  this  rule,  so  far  that,  if 
entitled  to  the  enjoyment  of  the  estate,  a  cestui  que  trust  may 
maintain  ejectment  in  his  own  name* 

§  1504.  Special  Trust —  Proprietary  Po-wer  of  Trustee.  —  If 
the  trust  be  a  special  one,  the  trustee  may  exercise  a  proprietary 
power  and  control  over  the  trust-estate,  so  far  as  the  execution 
of  the  trust  may  render  it  necessary  to  invest  him  with  these.^ 

1  Ripley  v.  Bates,  110  Mass.  162.  2  Heard  v.  Baird,  40  Miss.  800. 

8  Ante,  §  781 ;  Matthews  v.  Ward,  10  Gill  &  J.  456  ;  Jackson  d.  Smith  v. 
Pierce,  2  Johns.  226  ;  Beach  v.  Beach,  14  Vt.  28;  Gunn  v.  Barrow,  17  Ala.  743  ; 
Lewin,  Trusts  (2d  ed. ),  476.  See  Hill,  Trust.  274,  Wharton's  note  for  the  American 
cases  on  the  question  who  shall  bring  actions  in  regard  to  the  legal  estate  ;  Jack- 
son d.  Kemball  v.  Van  Slyck,  8  Johns.  487  ;  Jackson  d.  Whitbeck  v.  Deyo,  3  Johns. 
422  ;  Goodtitle  v.  Jones,  7  T.  R.  47  ;  Doe  d.  Shewen  v.  Wroot,  5  East,  132  ;  Roe 
d.  Reade,  8  T.  R.  123;  Morton  v.  Leonard,  12  Pick.  152;  Somes  v.  Skinner,  16 
Mass.  348.  So  the  trustee  may  have  waste  against  his  cestui  que  trust.  Wood- 
man V.  Good,  6  Watts  &  S.  169  ;  White  v.  Albertson,  3  Dev.  241 ;  Freeman  v. 
Cook,  6  Ired.  Eq.  373. 

*  In  Mississippi,  where  a  trust  has  been  satisfied.  Brown  v.  Doe,  7  How.  (Miss.) 
181.  The  contrary  is  held  in  Ohio.  Moore  v.  Burnet,  11  Ohio,  334.  But  in 
Pennsylvania  the  cestui  que  trust  may  sue  if  entitled  to  the  enjoyment  of  the  estate. 
Presbyterian  Cong.  v.  Johnston,  1  Watts  &  S.  9  ;  School  Directors  v.  Dunkle- 
berger,  6  Penn.  St.  29. 

5  Lewin,  Trusts  (2d  ed.),  470  ;  Hill,  Trust.  273;  McCosker  v.  Brady,  1  Barb.  Ch. 
329  ;  Barnett's  App.,  46  Penn.  St.  399.  The  power  of  the  trustee  to  control  the 
estate  was  illustrated  in  the  case  of  Pleasanton's  App.,  99  Penn.  St.  362.  In  that 
case,  the  estate  comprised  a  large  number  of  houses.  The  trustee  fixed  the  rent  at 
a  high  price,  so  that  some  of  the  houses  remained  unlet,  on  th.e  ground  that  the 
gain  would  more  than  offset  the  loss.  The  court  held  that  he  was  not  liable  on  a 
surcharge  for  the  amount  of  loss,  as  his  error  was  one  of  discretion  merely, 
although  if  an  application  had  been  made  for  his  removal,  it  might  have  been 
successful. 


488  TRUSTS. 

And  where  the  power  of  a  trustee  ceases  by  the  limitation  con- 
tained in  the  trust  itself,  he  can  no  longer  hold  possession  of 
the  estate,  and  may  be  compelled  to  reconvey  it.^ 

§  1505.  When  Purchaser  bound  to  see  to  Application  of  Pur- 
chase-money.—  There  is  one  class  of  trusts  where  equity  follows 
the  estate  into  the  hands  of  bona  fide  purchasers,  although  the 
sale  be.  made  in  conformity  with  the  power  and  duty  of  the 
trustee ;  and  that  is  where  devises  of  lands  are  made  to  trus- 
tees to  sell  for  the  payment  of  certain  specific  debts,  or  to  apply 
the  money  to  certain  specific  purposes.  The  purchaser  in  such 
cases  is  bound  to  see  that  the  money  is  properly  applied  ;  other- 
wise the  land  may  be  charged  in  such  purchaser's  hands  with 
the  trust  of  paying  such  debts  or  the  execution  of  such  pur- 
pose.2  But  this  doctrine  is  confined  to  cases  where  the  trust  is 
of  a  limited  and  defined  nature,  and  does  not  extend  to  one  of 
a  general  character,  such  as  the  payment  of  a  testator's  debts 
or  legacies  generally,  without  specifying  or  defining  them.^ 
And  the  reason  for  the  distinction  is,  that  in  one  case  the  pur- 
chaser is  apprised,  by  the  terms  of  the  power  of  the  trustee,  of 
the  specific  purposes  for  which  the  money  is  to  be  applied,  and 
may  protect  himself  by  seeing  that  this  is  done  ;  in  the  other 
he  has  no  means  of  knowing  what  debts,  and  the  like,  are  to  be 
paid,  nor  to  whom.*  So  where  the  trustee  is  to  sell  at  his  dis- 
cretion at  public  or  private  sale,  the  purchaser  is  not  bound  to 
see  to  the  application  of  the  purchase-money.  And  when  the 
trust  is  recorded,  the  purchaser  is  charged  with  notice  of  what 
it  is.  And  if  the  sale  were  made  for  other  purposes  than  the 
execution  of  the  trust,  the  court  may  in  their  discretion  set  it 
aside  if  this  was  known  to  the  purchaser.^  And  where  executors 
were  authorized  to  sell,  if  in  their  judgment  it  should  be  neces- 

1  Waring  v.  "Waring,  10  B.  Mon.  331. 

^  Story,  Eq.  Jur.  §  1127  ;  Duffy  v.  Calvert,  6  Gill,  4S7  ;  Gardner  v.  Gardner, 
3  Mason,  C.  C.  218  ;  Diinch  v.  Kent,  1  Vern.  260  ;  Spalding  v.  Shalmer,  1  Vern. 
301  ;  1  Cruise,  Dig.  450. 

8  Oonover  v.  Stothoff,  38  N.  J.  Eq.  55  ;  Keister  v.  Scott,  61  Md.  507  ;  Guill  v. 
Northern,  67  Ga.  345 ;  Carey  v.  Brown,  62  Cal.  376  ;  Norman  v.  Towne,  130 
Mass.  52. 

*  Story,  E(i.  Jur.  §  1130  ;  1  Cruise,  Dig.  451  ;  Potter  v.  Gardner,  12  Wheat. 
498  ;  Andrews  v.  Sparhawk,  13  Pick.  393;  Stall  v.  Cincinnati,  16  Ohio  St.  169, 
177;  Urann  v.  Coates,  117  Mass.  44. 

6  Nicholls  V.  Peak,  12  N.  J.  Eq.  69. 


RIGHTS,   POWERS,    AND    DUTIES   OF   PARTIES   TO    TRUSTS.      489 

sary,  a  purchaser  is  not  bound  to  see  to  the  application  of  the 
purchase-money.^ 

§  1506.  Trustee's  Compensation  —  Indirect  Profits.  —  Formerly 
it  was  a  doctrine  of  universal  application,  that,  a  trust  being  a 
matter  of  honor  and  personal  confidence,  a  trustee  was  not  en- 
titled to  charge  compensation  for  his  services.  But  this  has  not 
been  generally  adopted  in  this  country,  and  the  doctrine  is 
undergoing  a  change  in  England.^  [But  neither  in  England 
nor  in  the  United  States  will  a  trustee  be  allowed  to  make  an 
indirect  profit  by  reason  of  his  connection  with  tiie  estate. 
"  If  trustees  are  factors,  or  brokers,  or  commission  agents,  or 
auctioneers,  or  bankers,  or  attorneys,  they  can  make  no 
charges  against  the  trust  estate  for  services  rendered  by  them 
in  their  professional  capacities  to  the  estates  of  which  they  are 
trustees."  2] 

1  Davis  «.  Christian,  15  Gratt.  11. 

2  Story,  Eq.  Jur.  §  1268 ;  Barrell  v.  Joy,  16  Mass.  221  ;  Denny  v.  Allen,  1  Pick. 
147  ;  Meachani  v.  Sternes,  9  Paige,  398  ;  Wagstaff  v.  Lowerre,  23  Barb.  209. 

3  Perry,  Trusts,  §  432. 


490         TRUSTS  UNDER  THE  LAW  OF  NEW  YORK. 


CHAPTER  LXI. 

TRUSTS   UNDER   THE   LAW   OF    NEW    YORK. 

§  1507.  The  law  as  to  trusts  as  well  as  uses  has  been 
materially  modified  by  statute  in  New  York,  which  has  led  to 
several  important  rulings  of  their  courts,  to  which  it  is  pro- 
posed briefly  to  refer,  rather  by  way  of  showing  what  depart- 
ures have  been  made  from  the  general  system  of  trusts,  as 
above  explained,  tlian  of  giving  a  complete  outline  of  the 
present  system  prevailing  there. ^  The  statute  referred  to  is 
art.  2,  tit.  2,  c.  1,  part  2d,  of  the  Revised  Statutes  of  New  York 
of  1827.  The  object  of  the  act  was  to  abolish  all  trusts  where, 
by  tlie  English  statute  of  uses,  the  legal  estate  would  be  exe- 
cuted in  the  person  entitled  to  the  equitable  estate,  and  to 
declare  them  legal  estates  in  the  cestuis  que  trusty  extending 
this  principle  to  trust  terms  where  the  cestuis  que  trust  are  to 
have  the  benefit  of  the  possession  of  the  estate.^  So  where 
the  property  conveyed  in  a  deed  has  been  given  to  the  grantee 
merely,  as  a  trustee  for  others,  and  not  for  his  own  benefit,  he 
will  take  no  legal  title  or  beneficial  interest  under  such  deed.* 
And  if  the  cestui  que  trust  be  not  named  or  ascertained,  the 
limitation  would  be  wholly  void.^  Nor  will  the  form  in  which 
the  trust  is  limited  make  any  difference  where  the  purpose  and 
intention  are  to  secure  the  enjoyment  or  possession   of   the 

1  For  much  of  what  follows,  reference  has  been  had  to  "  The  Law  of  Real 
Property  of  the  State  of  New  York,"  by  Mr.  Lalor.  The  law  of  Alabama  is 
substantially  like  that  of  New  York  on  this  subject.  You  v.  Flinn,  34  Ala.  412, 
413. 

2  Lalor,  Real  Prop.  125  ;  Coater  v.  Lorillard,  14  Wend.  365-399. 

8  Rev.  Stat.  1827,  pt.  2,  art.  2,  tit.  "2,  c.  1,  §  47  ;  Lalor,  Real  Prop.  155,  157  ; 
NicoU  V.  Walworth,  4  Denio,  385  ;  Knight  ?'.  Weatherwax,  7  Paige,  182. 

*  Lalor,  Real  Prop.  157 ;  LaGrange  v.  L'Amoreux,  1  Barb.  Ch.  18.  So  in  Min- 
nesota.    Sumner  v.  Sawtelle,  8  Minn.  318. 

5  Hotchkiss  V.  Elting,  36  Barb.  44. 


TRUSTS  UNDER  THE  LAW  OP  NEW  YORK.        491 

property  to  another  than  the  grantee  named.  Thus  a  limita- 
tion to  A  to  his  use,  to  the  use  of  or  in  trust  for  B,  would  give 
nothing  to  A,  and  the  legal  and  equitable  estates  would  unite 
in  B.i  But  what  are  known  as  active  trusts  are  not  affected 
by  the  statute :  they  remain  as  they  were  before  its  passage.'^ 
Thus  a  grant  to  A  in  trust  to  pay  the  rents  to  B,  a  married 
woman,  during  her  life,  and  after  her  death  to  convey  to  her 
children,  is  a  good  trust-estate  for  the  life  of  B.^  In  such  case, 
the  trust  would  cease  at  tlie  death  of  the  cestui  que  trust  for 
life,  and  the  remainder  would  become  an  executed  use  in  the 
one  who  is  to  take  the  estate  ;  as  where  the  trust  was  for  A 
during  life,  and  at  his  death  to  convey  the  estate  to  B,  the 
estate  is  executed  in  B  without  any  further  act  by  the  trustee.* 
A  grant  in  trust  for  two  purposes,  one  lawful  and  the  other 
not,  would  create  a  valid  trust  in  respect  to  the  lawful  purpose, 
but  be  void  as  to  the  other.^  Under  the  denomination  of  active 
trws^s,  which  are  recognized  by  the  statute  as  valid,  are,  ^/-s^, 
to  sell  for  the  benefit  of  creditors  ;  second,  to  sell,  mortgage, 
or  lease  for  the  benefit  of  legatees  ;  third,  to  receive  rents  and 
profits,  and  apply  the  same  to  the  use  of  any  person;  fourth,  to 
receive  rents  and  profits  to  accumulate  for  a  period  and  pur- 
pose authorized  by  statute.^  So  a  devise  in  trust  to  pay  an- 
nuities out  of  real  estate  is  held  to  be  a  valid  trust.'^     Nor  does 

1  Rev.  Stat.  1827,  and  5th  ed.  1859,  pt.  2,  art.  2,  tit.  2,  c.  1,  §  49  ;  Stat,  at  Large, 
vol.  1,  p.  677,  §  49 ;  Lalor,  Real  Prop.  158  ;  Wood  w.  Wood,  5  Paige,  596. 

2  Rev.  Stat.  1827,  pt.  2,  art.  2,  tit.  2,  c.  1,  §  48  ;  Lalor,  Real  Prop.  157  ;  Cush- 
ney  v.  Henry,  4  Paige,  345  ;  Judsoii  v.  Gibbons,  5  Wend.  224. 

8  Wood  V.  Mather,  38  Barb.  477. 
*  Livingston's  Pet.,  34  N.  Y.  567. 

5  Harrison  v.  Harrison,  36  N.  Y.  548. 

6  Rev.  Stat.  1827,  pt.  2,  art.  2,  tit.  2,  c.  1,  §  55  ;  Lalor,  Real  Prop.  167.  See 
Oilman  v.  Reddington,  24  N.  Y.  9. 

^  Mason  v.  Mason,  2  Sandf.  Ch.  432.  A  trust  to  pay  to  A  "  all  the  income  de- 
rived from  my  estate  after  paying  the  necessary  expenses,"  A  being  a  non-resident 
alien,  has  been  held  to  be  an  active  and  valid  trust.  Marx  v.  McGlynn,  4  Redf. 
Surr.  455  ;  s.  c.  88  N".  Y.  557.  So  a  trust  to  buy  a  house  and  lot.  Scofield  v.  St. 
John,  65  How.  Pr.  292.  The  trust  need  not  be  in  the  precise  words  of  the  st.atute 
in  order  to  be  a  valid  trust.  Thus,  where  a  trust  was  expressed  to  be  for  the  neces- 
sary support  and  maintenance  of  the  testator's  son  during  his  life,  and  after  his 
death  the  property  to  go  to  his  children,  it  was  held  to  be  a  valid  trust.  Donovan 
V.  Van  De  Mark,  78  N.  Y.  244.  A  trust-deed  to  one  to  sell  and  convey  lands,  and 
until  they  should  be  sold  to  rent  them,  to  execute  deeds  on  the  payment  of  debts 
owing  on  the  lands,  and  to  pay  the  proceeds  to  the  settlor  during  his  life,  and  after 


492  TRUSTS   UNDER  THE   LAW   OF   NEW   YORK. 

the  statute  intend  to  affect  implied  or  resulting  trusts,  except 
to  limit  their  extent,  confining  them  to  cases  where  some  im- 
proper advantage  has  been  taken  by  the  trustee  of  the  confi- 
dence or  situation  of  the  cestui  que  trust.^  It  is  accordingly 
provided,  that  no  trust  shall  result  where  one  pays  money  and 
the  conveyance  is  made  in  the  name  of  another,  unless  it  is 
done  without  the  knowledge  or  assent  of  the  party  paying  the 
money,  or  unless  the  party  paying  the  money  have  creditors, 
in  which  case  a  trust  results  in  their  favor.  So  if  A  purchases 
land  with  B's  money,  and  takes  a  deed  to  himself,  with  the 
knowledge  of  the  owner  of  the  money,  it  will  not  raise  a  result- 
ing trust  in  his  favor.^  But  if  this  is  done  without  the  knowl- 
edge  of  the  owner  of  the  moiiey,  there  is  a  resulting  trust  in 
his  favor.  Thus,  where  an  agent  bought  land  with  the  money 
of  the  principal,  the  question  whether  or  not  a  trust  resulted 
in  favor  of  the  principal  w^as  held  to  turn  upon  the  question 
whether  he  knew  of  the  action  of  the  agent.^  The  money 
must  be  paid  before  the  execution  of  the  deed.  Thus  if  A 
buys  land  with  his  own  money  and  after  the  deed  is  executed, 
B  reimburses  A  the  price  of  the  land,  there  is  no  resulting 
trust  even  in  favor  of  B's  creditors.*  In  New  York,  creditors 
of  one  paying  money  for  an  estate  where  the  deed  is  taken  in 
a  third  person's  name  may  resort  to  equity  for  reacliing  it  for 
the  purpose  of  satisfying  their  debts  out  of  it.  The  statute 
raises  and  declares  a  trust  in  such  cases  in  favor  of  the  cred- 
itors of  the  one  who  pays  the  money .^  But  where  a  married 
woman  paid  the  consideration,  and  the  conveyance  was  with- 
out her  knowledge  taken  to  her  brother,  it  was  held  to  raise 
a  resulting  trust  in  her  favor,  and  not  to    come  within  the 

his  death  and  the  payment  of  his  debts  to  distribute  as  he  shoukl  in  writing  ap- 
point, or  in  default  of  such  appointment  to  his  heirs,  is  not  a  valid  trust.  Heer- 
mans  v.  Burt,  78  N.  Y.  259. 

^  Lalor,  Real  Prop.  125,  159  ;  Astor  v.  L'Amoreux,  4  Sandf.  524. 

2  Rev.  Stat.  1827,  pt.  2,  art.  2,  tit.  2,  c.  1,  §§  51,  52  ;  Lalor,  Keal  Prop.  160- 
162  ;  Norton  v.  Stone,  8  Paige,  222  ;  Jencks  v.  Alexander,  11  Paige,  619  ;  Brew- 
ster V.  Power,  10  Paige,  562  ;  McCartney  v.  Bostwick,  32  N.  Y.  59 ;  Stebbins  i-. 
Morris,  23  Fed.  Rep.  360. 

8  Reitz  V.  Reitz,  80  N.  Y.  538. 

♦  Niver  v.  Crane,  98  N.  Y.  40. 

6  McCartney  v.  Bostwick,  32  N.  Y.  53,  59  ;  Garfield  v.  Hatiuaker,  15  N.  Y. 
475  ;  Wood  v.  Robinson,  22  N.  Y.  564. 


TRUSTS  UNDER  THE  LAW  OP  NEW  YORK.        493 

statute  of  New  York.^  So  where  the  jjarents  of  a  minor,  wish- 
ing to  malie  an  advancement  to  her,  purchased  an  estate,  and 
the  deed  was  taken  in  the  name  of  A,  who  paid  no  part  of  tho 
purchase-money,  it  was  held  that  a  trust  resulted  in  favor  of  the 
minor,  which  she  could  enforce  against  A  in  equity  as  trustee.^ 
But  if  one  pays  another's  money,  and  takes  a  deed  to  himself 
without  the  knowledge  or  assent  of  such  other  person,  or  do 
this  in  violation  of  a  trust,  a  trust  results  in  favor  of  him 
whose  money  has  been  thus  applied,  as  would  have  been  the 
case  before  the  statute.^  No  implied  trust,  however,  will  affect 
a  purchaser  without  notice,  who  pays  a  valuable  consideration 
for  the  estate.*  Where  there  is  an  express  trust,  the  whole 
estate  is  in  the  trustee.  The  cestui  que  trust  takes  no  estate  or 
interest  in  the  lands,  and  can  only  enforce  the  trust  in  equity.^ 
It  was  once  held  that  the  statute  does  not  abolish  public  chari- 
table trusts,  but  the  courts  will  enforce  them  as  before.^  But 
later  decisions  seem  to  favor  the  idea  that  all  charitable  trusts, 
except  such  as  are  express  and  come  within  those  excepted  in 
the  act  abolishing  uses  and  trusts,  are  included  in  the  act,  and 
are  no  longer  valid. '^  And  it  was  finally  settled  that  charitable 
trusts  as  understood  in  England  are  not  excepted  from  the 
statute,  if  the  trust  be  for  the  benefit  of  a  class  undefined  and 
incapable  of  being  ascertained  with  certainty.  It  is  sufficient 
that  the  legatee  is  so  described  that  he  can  be  ascertained  and 
known  when  the  right  to  receive  the  legacy  accrues.^  As  to 
the  duration  of  trusts,  the  rule  is  that  they  will  be  held  to  con- 
tinue so  long  as  it  may  be  necessary  to  accomplish  the  purposes 
for  which  they  are  created,  and  the  estates  of  trustees  cease  as 
soon  as  the  purposes  cease  for  which  the  trust  was  created.^ 
Where  lands  are  devised  to  executors  or  trustees  to  sell,  and 

1  Lounsbury  v.  Pnrdy,  18  N.  Y.  515  ;  Day  v.  Roth,  18  N.  Y.  448. 

2  Sieniou  v.  Schurck,  29  N.  Y.  598. 

«  Rev.  Stat.  1827,  pt.  2,  art.  2,  tit.  2,  c.  1,  §  53  ;  Lalor,  Real  Prop.  164  ;  Reid 
I'.  Fitch,  11  Barb.  399  ;  Lounsbury  v.  Purely,  id.  496. 

*  Rev.  Stat.  1827,  pt.  2,  art.  2,  tit.  2,  c.  1,  §  54  ;  Lalor,  Real  Prop.  167. 

5  Rev.  Stat.  1827,  pt.  2,  art.  2,  tit.  2,  c.  1,  §  72  ;   Lalor,  Real  Prop.  185. 

6  Williams  v.  Williams,  8  N.  Y.  525. 

f  Levy  V.  Levy,  33  N.  Y.  97,  134,  where  Wright,  J.,  examines  the  question  at 
great  length.     See  also  Downing  v.  Manshall,  23  N.  Y.  366. 

8  Holmes  v.  Mead,  52  N.  Y.  343. 

9  Rev.  Stat.  1827,  pt.  2,  art.  2,  tit.  2,  c.  1,  §§  59,  79  ;  Lalor,  Real  Prop.  176. 


494  TRUSTS    UNDER   THE   LAW    OF    NEW    YORK. 

they  are  not  to  receive  the  rents  and  profits,  no  estate  vests  in 
them,  but  a  mere  power  only.  And  the  same  rule  applies  to 
all  cases  of  express  trusts  which  may  be  exercised  under  the 
form  of  a  power.  They  are  construed  as  giving,  not  an  estate, 
but  merely  a  power.^  Upon  the  creation  of  a  trust,  whatever 
estate  or  interest  is  not  embraced  in  the  trust,  or  otherwise 
disposed  of,  remains  in  and  reverts  to  the  person  who  creates 
the  estate  of  the  trustees.^  Where  the  trust  is  expressed  in 
the  instrument  creating  it,  every  sale  or  act  of  the  trustee 
which  is  in  contravention  of  the  trust  is  void.^  If  the  trust 
is  not  declared  in  the  deed  conveying  the  estate  to  the  trustee, 
it  is  liable  for  the  debts  of  the  trustee  in  favor  of  subsequent 
creditors  without  notice  of  the  trust,  and  shall  be  deemed  his 
absolute  property  as  to  them,  and  purchasers  from  him,  with- 
out notice,  and  for  a  valuable  consideration.*  No  one  paying 
money  in  good  faith  to  a  trustee  is  to  be  responsible  for  its 
application.^  Trust-estates  do  not  descend  to  the  heirs  of 
trustees.  If,  at  the  death  of  a  trustee,  a  trust  is  unexecuted, 
the  estate  vests  in  the  court,  who  may  execute  the  trust  in 
person,  or  appoint  a  trustee  for  the  purpose.^  Trustees  may 
resign  by  permission  of  the  court,  or  may  be  removed  for  good 
cause  ;  and  in  such  cases  the  court  may  substitute  new  trustees 
in  place  of  the  old  ones." 

1  Rev.  Stat.  1827,  pt.  2,  art.  2,  tit.  2,  c.  1,  §§  70,  72;  Lalor,  Real  Prop.    182, 
185  ;  Heermansu.  Robertson,  64  N.  Y.  332. 

2  Rev.  Stat.  1827,  pt.  2,  art.  2,  tit.  2,  c.  1,  §  74  ;   Lalor,  Real  Prop.  187 ;  James 
f.  James,  4  Paige,  115. 

3  Rev.  Stat.  1827,  p.  2,  art.  2,  tit.  2,  c.  1,  §  77  ;  Lalor,  Real  Prop.  189. 

*  Rev.  Stat.  1827,  pt.  2,  art.  2,  tit.  2,  c.  1,  §  76  ;  Lalor,  Real  Prop.  189. 
6  Rev.  Stat.  1827,  pt.  2,  art.  2,  tit.  2,  c.  1,  §  78  ;  Lalor,  Real  Prop.  190. 
6  Rev.  Stat.  1827.  pt.  2,  art.  2,  tit.  2,  c.  1,  §  80  ;  Lalor,  Eeal  Prop.  193. 
^  Rev.  Stat.  1827,  pt.  2,  art.  2,  tit.  2,  e.  1,  §§  81-83  ;  Lalor,    Real  Prop.    194- 
196. 


ESTATES   IN   REVEESION.  496 


CHAPTER  LXII. 

ESTATES   IN   REVERSION. 

§  1508.  Estates  in  expectancy. 

1509.  Reversion  defined. 

1510.  Reversion  may  be  conveyed  or  devised. 

1511.  May  exist  after  any  number  of  estates  less  than  a  fee-simple. 

1512.  Wliat  reversion  after  base  fee. 

1513.  Reversion  after  what  estates. 

1514.  Reversioner's  seisin. 

1515.  Inheritance  of  reversions. 

1516.  Dower  and  curtesy. 

1517.  Rights  incident  to  reversions. 

1518.  Reversioner's  remedy  for  waste. 

1519.  Reversioner's  property  in  growing  trees. 

1520.  Rent  incident  to  reversion. 

1521.  Merger  of  reversion  with  prior  estate. 

1522.  Reversion  not  affected  by  disseisin  of  prior  estate. 

1523.  Fealty  due  to  reversioner. 

1524.  Reversion  of  estate  granted  to  a  corporation. 

1525.  Devise  of  a  subsequent  estate  to  heirs. 

§  1508.  Estates  in  Expectancy.  —  [Estates,  the  enjoyment  of 
which  is  postponed  to  a  future  time,  are  called  estates  in  ex- 
pectancy. Of  these,  the  estate  in  reversion  and  the  estate  in 
remainder  were  known  to  the  common  law  ;  that  is,  they  were 
legal  estates  created  or  called  into  being  by  the  common  law 
method  of  conveyance,  by  feoffment  and  livery  of  seisin.  The 
reversion  is  the  estate  left  to  a  grantor  after  he  has  carved  out 
of  his  estate  a  present  particular  estate  less  than  his  own. 
The  owner  of  the  present  particular  estate  has  the  present 
right  of  possession  and  enjoyment,  while  his  grantor,  called 
the  reversioner,  has  an  estate  whose  right  of  enjoyment,  and 
the  right  of  possession  under  which,  are  postponed  until  the 
termination  of  the  particular  estate,  A  remainder  is  an  estate 
created  by  the  same  act  which  created  another  present,  prior 
particular  estate,  and  is  limited  to  take  effect  in  possession  and 
enjoyment  immediately  upon  the  termination  of  the  particular 


•196  ESTATES   IN   REVERSION. 

estate.  Because  at  common  law  no  estate  of  freehold  could 
be  created  without  livery  of  the  seisin,  and  because  livery  was 
an  act  operative  in  prcesenti,  no  estate  of  freehold  to  com- 
mence 171  futuro  could  be  created  without  the  interposition  of 
the  particular  estate,  to  whose  tenant  livery  was  made  on  be- 
half of  the  future  tenant  or  remainder-man.  But  the  statute 
of  uses  made  possible  the  creation  of  estates  to  commence  in 
futuro  without  the  interposition  of  a  prior  particular  estate. 
It  will  be  remembered  that  a  use  was  an  equitable  estate,  and 
that  uses  could  always  be  created  to  commence  in  futuro. 
Wlien  the  use  arose,  the  feoffee  to  uses  was  held  accountable 
to  the  cestui  que  use.  After  the  passage  of  the  statute  of  uses, 
a  use  could  still  be  created  to  commence  in  the  future,  and 
when  it  arose,  the  statute  drew  the  seisin  to  the  use,  turning 
the  equitable  into  a  legal  estate.  These  future  legal  estates, 
creatable  under  the  statute  of  uses,  independent  of  any  prior 
intermediate  estate,  are  called  springing  uses  and  shifting  uses. 
By  a  process  of  judicial  legislation,  as  will  be  fully  explained 
hereafter,  it  became  possible,  after  the  statute  of  wills,  32  & 
34  Hen.  YIIL,  to  create  by  will  future  legal  estates  independent 
of  a  prior  intermediate  estate,  and  tliese  are  called  executonj 
devises.  Springing  uses,  shifting  uses,  and  executory  devises 
are  classed  together  as  executory  estates.'] 

§  1509.  A  Reversion  is  defined  as  what  remains  to  the 
owner  of  an  estate  after  he  has  parted  with  a  portion  of  it,  the 
possession  of  what  thus  remains  being  to  return  or  revert  to 
him,  upon  the  determination  of  the  period  for  which  the  por- 
tion so  parted  with  was  to  be  enjoyed.^  Consequently,  as  to  all 
the  estate  in  the  lands,  except  the  particular  part  so  granted  or 
devised,  the  original  owner  remains  still  the  owner,  in  all  re- 
spects, as  he  originally  was.  He  has  simply  carved  out  of  his 
original  estate  a  temporary  use  and  enjoyment  of  it;  and  when 
that  has  been  served,  he  is  in  as  if  no  such  grant  had  been 
made.  This  reversion,  therefore,  is  a  present  vested  estate, 
which  the  law  creates  or  raises  in  his  favor,  and  which  has  all 
the  properties  of  the  original  estate  held  by  him,  except  the 
right  of  present  possession  and  enjoyment. 

§  1510.    May  be  conveyed  or  devised.  —  It  may,  accordingly, 

1  Watk.  Conv.  c.  16. 


ESTATES    IN    REVERSION.  497 

be  conveyed  by  deed  or  devise,  or  will  go  to  legal  representa- 
tives of  the  reversioner  if  he  dies  intestate,  though  there  was 
a  technical  difficulty  at  the  common  law  in  conveying  it  by 
feoffment,  since  the  reversioner  is  not  in  possession  so  as  to 
make  livery,  unless  the  particular  estate  was  for  years,  and  the 
tenant  consented  to  the  livery.  It  required,  therefore,  to  be 
done  by  grant,  and,  like  other  grants,  could  only  be  made  by 
deed,  even  before  the  statute  of  frauds.  And  formerly  it  was 
requisite  that  the  tenant  of  the  particular  estate  should  assent 
to  the  transfer,  and  this  assent  was  called  his  attornment.  But 
this  is  now  done  away  with  by  statute  4  Anne,  c.  16,  §  9.^ 
The  reversion  may  be  conveyed  by  any  form  of  deed  under  the 
statute  of  uses,  such  as  bargain  and  sale,  covenant  to  stand 
seised,  and  lease  and  release  ;  but  it  can  no  more  be  granted 
to  commence  in  futuro  than  any  estate  in  possession,  though  a 
similar  estate  may  be  created  to  come  into  effect  as  a  spring- 
ing use.2 

§  1511.  May  exist  after  any  Number  of  Estates  Less  than  a  Fee- 
simple,  —  It  is  no  matter  how  many  estates  are  carved  out  of 
the  owner's  entire  estate,  a  reversion  will  be  left,  provided 
these  do  not  amount  in  quantity  to  his  original  estate.  Thus 
the  owner  of  a  fee  may  grant  twenty  or  more  successive  life- 
estates,  and  still  retain  his  fee-simple  of  the  land,  though  his 
right  of  possession  will  be  suspended  till  these  life-estates 
shall  have  been  exhausted.^  There  is  a  reversion  left  to  the 
grantor  of  an  estate  in  fee-tail.* 

§  1512.  What  Reversion  after  Base  Pee.  —  It  has  been  as- 
sumed, that,  where  one  grants  a  base  fee  in  land,  there  is  no 
reversion  remaining  in  him.^  But  if  the  determinability  of 
the  fee  depend  upon  an  event,  which,  by  the  laws  of  nature, 
must  happen  at  some  time,  as  an  estate  to  A  and  his  heirs,  so 
long  as  a  certain  tree  stands,  it  would  seem  that  there  would 
be  a  reversion  in  the  grantor.^     In  one  of  the  cases,  the  court 

1  See  ante,  §  698. 

2  Walk.  Conv.  211,  Coventry's  note  ;  Burt.  Real  Prop.  §§  39,  40  ;  Jones  v.  Roe 
d.  Perry,  3  T.  R.  93  ;  2  Cruise,  Dig.  336  ;  1  Prest.  Est.  89  ;  Wms.  Real  Prop.  198. 
199. 

8  2  Cruise,  Dig.  335, 
*  2  Cruise,  Dig.  335. 
6  2  Cruise,  Dig.  335. 
6  Ante,  §  169  ;  1  Prest.  Est.  440. 
VOL.  II.  —  32 


498  ESTATES   IN    REVERSION. 

call  such  an  interest  as  this  a  "  possibility  of  reverter ; "  but 
they  all  agree  that  it  is  not  an  interest  which  can  be  limited  by 
way  of  remainder.^  Whereas,  if  the  estate  were  granted  to  A 
and  his  heirs  till  B  returns  from  Rome,  it  would  create  a  pos- 
sibility of  reverter,  and  not  a  reversion  ;  for  if  B  were  to  die 
at  Rome,  the  estate  in  A  would  become  absolute  and  indeter- 
minable.^ So  if  A  sell  land  to  a  banking  company,  and  they 
hold  it  till  their  charter  expires,  it  will  revert  to  him  or  his 
heirs.  But  such  a  right  is  not  a  reversion :  it  is  a  naked 
possibility  of  reverter  which  he  could  not  convey  or  assign.^ 

§  1513.    Reversion  after  what  Estates Whatever    estate    a 

man  may  have,  be  it  for  years,  for  life,  or  in  fee,  if  he  parts 
with  only  a  portion  of  it,  the  residue  is  in  him  as  a  reversion. 
Thus  the  owner  of  a  fee  may  grant  a  life-estate,  and  a  reversion 
is  at  once  raised.  If  he  gives  an  estate  for  years  only,  the 
reversion  does  not  arise  till  the  lessee  enters ;  though  if  the 
estate  for  years  is  created  by  a  conveyance  deriving  its  effect 
from  the  statute  of  uses,  the  law  gives  the  lessee  possession 
without  entry,  and  a  reversion  arises  at  once.  Upon  this  prin- 
ciple, if  a  tenant  in  tail  grant  away  a  life-estate  to  another,  he 
has  a  reversion.  So  if  a  tenant  for  life  create  an  estate  for 
years,  he  has  a  reversion  left ;  and  if  a  tenant  for  fifty  years 
underlet  for  forty-nine,  he  has  a  reversion,  as  he  would  have 
though  his  own  original  estate  exceeded  but  by  a  single  day 
the  estate  which  he  parts  with  to  his  tenant.^ 

§  1514.  Reversioner's  Seisin.  —  A  reversioner  in  fee,  subject 
to  an  estate  for  life  or  years,  is  technically  said  to  be  "seised 
of  the  reversion  of  the  tenements  as  of  fee  and  right,"  ^  though 
there  can  be  no  actual  seisin  thereof  during  the  existence  of 
the  particular  estate  of  freehold.*^  And  such  reversion,  expect- 
ant upon  an  estate  for  life,  vests,  in  Massachusetts  and  several 
of  the  States,  by  descent,  in  the  heirs  of  the  tenant  in  fee  upon 
his  decease,  and  their  rights,  as  such  heirs,  will  be  governed  by 

1  Ayres  v.  Falkland,  1  Ld.  Raym.  326. 

2  Ante,  §  170. 

3  Nicoll  V.  N.  Y.  &  E.  R.  R.  Co.,  12  N.  Y.  134. 
*  2  Cruise,  Dig.  SBH,  336. 

6  Wrotesley  v.  Adams,  Plowd.  191 ;  Moore  v.  Rake,  26  N.  J.  L.  575,  589 ;  Cook 
V.  Hammond,  4  Mason,  C.  C.  484,  489  ;  2  Cruise,  Dig.  336  ;  ante,  §  116. 
6  Vanderheyden  v.  Crandall,  2  Denio,  9. 


ESTATES   IN   REVERSION.  499 

the  law  as  it  then  existed,  and  not  as  it  may  be  at  the  expira- 
tion of  the  life-estate,  when  the  reversion  becomes  an  estate  in 
possession.  Such  reversioner  may  have  waste  against  the  ten- 
ant for  life,  or  he  may  alien  his  interest,  or  mortgage  or  charge 
it  with  his  debts. ^  And  yet,  if  the  widow  or  husband  of  the 
deceased  ancestor  takes  dower  or  curtesy  in  the  estate,  it  so 
far  defeats  the  seisin  of  the  heir  as  reversioner,  that,  if  he 
dies  during  the  continuance  of  the  life-estate  of  the  widow  or 
husband,  his  own  widow  will  not  be  entitled  to  dower  out  of  the 
reversion  when  it  shall  come  to  be  an  estate  in  possession.^ 

§1515.  Inheritance  of  Reversions.  —  From  this  particular 
nature  of  the  seisin  of  the  reversioner,  nice  and  difficult  ques- 
tions of  descent  have  arisen  at  common  law,  where  one  must 
trace  his  descent  as  heir  from  the  ancestor  who  was  last 
actually  seised,  in  consequence  of  the  rule  that  seisina  facit 
stipitem^  non  jus.  In  Massachusetts,  as  above  stated,  this  rule 
has  been  changed.  But  at  common  law,  although  each  suc- 
cessive reversioner,  to  whom  a  reversion  might  have  descended 
during  the  existence  of  the  particular  estate  for  life,  to  which 
it  is  subject,  might  convey  it,  devise  it,  or  incumber  it,  or  it 
might  be  levied  on  for  his  debt,  and  his  grantee  or  devisee,  or 
judgment  creditor,  would  become  a  new  stock  of  descent,  yet, 
if  no  act  of  transfer  of  this  kind  took  place  before  the  rever- 
sioner died,  the  reversion  would  not  necessarily  descend  to  his 
heirs,  but  would  descend  to  whoever  was  then  the  heir  of  the 
person  last  seised,  however  far  back  it  might  be  necessary  to 
trace  the  descent  to  find  who  had  been  so  seised,  and  who  was 
his  lineal  heir.  This  subject  is  discussed  and  explained  by 
Story,  J.,  and  Shaw,  C.  J.,  in  the  cases  of  Cook  v.  Hammond 
and  Miller  v.  Miller,  above  cited.^  If,  however,  the  reversioner 
shall  have  acquired  his  title  by  purchase,  he,  of  course,  be- 
comes a  new  stock  of  descent,  and  his  heirs  take  irrespective 
of  any  anterior  owner.*  But  it  must  be  understood,  that  the 
exclusion  of  a  mesne  reversioner  as  a  stock  of  descent,  because 

1  Miller  y.  Miller,  10  Met.  393;  Cook  (;.  Hammond,  4  Mason,  C.C.  467  ;  Marley 
V.  Rodgers,  5  Yerg.  217. 

2  Ante,  §  443  ;  Cook  v.  Hammond,  4  Mason,  C.  C.  485. 

8  See  also  4  Kent,  Com.  385.     Cook  t'.  Hammond,  4  Mason,  C.  C.  467;  Miller 
V.  Miller,  10  Met.  393. 
*  4  Kent,  Com.  386. 


500  ESTATES   IN   REVERSION. 

not  actually  seised,  only  applies  where  the  particular  estate  is 
a  freehold  ;  for  if  it  he  an  estate  for  years  only,  the  reversioner 
would  he  deemed  to  he  actually  seised,  so  as  to  make  a  new 
stirps}  But  the  law  in  this  respect  is  now  changed  hy  statute 
in  many  of  the  States  hesides  Massachusetts.^ 

§  1516.  Dower  and  Curtesy.  —  In  accordance  with  the  prin- 
ciple above  stated,  that  a  reversioner  in  fee  expectant  upon  an 
estate  for  years  is  deemed  to  be  actually  seised,  the  wife  or 
husband  of  such  reversioner  will  be  entitled  to  dower  or  curtesy 
in  the  same  manner  as  if  the  reversioner  were  in  actual  posses- 
sion, subject,  of  course,  to  the  estate  for  years,  if  it  was  created 
before  the  marriage,  or  the  reversion  were  acquired  by  pur- 
chase or  descent  during  coverture.^ 

§  1517.  Rights  incident  to  Reversions.  —  Among  the  powers 
and  rights  incident  to  a  reversion,  and  which  pass  with  it  to 
whomsoever  it  may  come  by  descent,  purchase,  or  devise,  are, 
first,  a  right  to  maintain  an  action  for  an  injury  done  to  the 
inheritance,  such  as  cutting  trees,  impairing  houses,  and  the 
like,  whether  done  by  the  tenant  or  a  stranger;  second,  a 
right  to  receive  accruing  rents  upon  a  demise  of  the  premises 
in  respect  to  which  the  reversion  exists.  If  the  act  injurious 
to  the  inheritance  be  done  by  a  stranger,  both  the  tenant  and 
the  reversioner  may  have  separate  actions,  each  according  to 
the  injury  done  to  their  respective  interests  which  are  thereby 
affected,  the  action  by  the  tenant  being  trespass,  that  of  the 
reversioner  being  case,*  though  now,  by  statute,  in  New  York, 
a  reversioner  may  have  waste  against  the  tenant,  or  trespass 
against  a  stranger  doing  injury  to  the  inheritance.^ 

§  1518.  Reversioner's  Remedy  for  "Waste.  —  To  protect  the 
rights  of  those  having  reversionary  interests  in  land  from 
toi'tious  acts  by  the  tenants,  which  injuriously  affect  the  iu- 
heritance,  the  statutes  of  Marleberge  aud  Gloucester  provided 
a  remedy  by  an  action  of  w^aste,  whereby  the  party  entitled  to 

1  Co.  Lit.  15a  ;  4  Kent,  Com.  386. 

2  See  post,  §  1847. 

3  2  Cruise,  Dig.  338 ;  ante,  §  365. 

*  Jesser  v.  Gifford,  4  Burr.  2141  ;  4  Kent,  Com.  355  ;  Little  v.  Palister,  3  Me. 
6  ;  Bartlett  v.  Perkins,  13  Me.  87;  Jackson  v.  Pesked,  1  Maule  &  S.  234;  Ripka 
V.  Sergeant,  7  Watts  &  S.  9;  ante,  §  297  et  seq. ;  Wood  v.  Griffin,  46  N.  H.  239. 

^  Livingston  v.  Haywood,  11  Johns.  429. 


ESTATES   IN   REVERSION.  501 

the  inheritance  recovered  damages,  and  the  place  wasted. 
And  besides  this,  he  might  maintain  an  action  on  the  case  in 
the  nature  of  wastc.^ 

§  1519.  Reversioner's  Property  in  Growing  Trees. — 'A  rever- 
sioner has  such  a  property  in  growing  trees,  although  the 
premises  are  in  the  possession  of  a  tenant  for  life,  that  if  the 
tenant  or  a  stranger  cut  them  without  right,  as  in  a  case  where 
timber-trees  are  cut  by  a  tenant,  they  become  at  once,  as  soon 
as  severed,  the  personal  property  of  the  reversioner,  who  may 
recover  for  them  accordingly  if  carried  away,^  And  yet  a 
reversioner,  entitled  to  land  only  upon  the  determination  of  a 
life-estate,  has  no  right  to  authorize  the  cutting  of  trees  during 
the  term  for  life.^ 

§  1520.  Rent  incident  to  Reversion.  —  In  respect  to  the 
recovery  of  rent  by  the  owner  of  the  reversion,  as  the  law 
stood  prior  to  32  Hen.  VIII.  c.  34,  where  one  made  a  lease 
reserving  rent,  and  took  a  covenant  for  the  payment  thereof 
from  the  lessee,  and  then  conveyed  his  reversion  to  a  stranger, 
the  purchaser  had  no  remedy  upon  such  covenant  except  in 
the  name  of  the  covenantee,  nor  could  he  avail  himself  of  any 
condition  in  the  lease  to  defeat  the  same  by  entry.  Rut  by  the 
thirty-fourth  chapter  of  the  statutes  of  that  year,  alike  remedy 
is  given  to  assignees  of  a  reversion  as  the  reversioner  himself 
had,  for  the  recovery  of  rent,  or  for  the  breach  of  any  covenant 
or  condition  in  a  lease  by  the  lessee  or  his  assigns.*  Where 
there  is  a  demise,  therefore,  of  an  estate,  reserving  rent,  the 
right  to  recover  this  rent  is  incident  to  the  reversioner  in 
whosesoever  hands  it  may  be,  unless  the  rent  shall  have  been 
severed  or  granted  away  by  itself  by  a  reversioner.  If,  there- 
fore, a  reversioner  granted  his  reversion,  either  by  absolute 
deed  or  by  mortgage,  with  no  exception  as  to  rent,  the  assignee 
may  recover  for  any  rent  accruing  due  after  such  assignment 
made.  But  rent  already  due  is  a  chose  in  action,  and  does  not 
pass  with  the  reversion.^ 

1  Ante,  §§  270,  311 ;  post,  Appendix  C,  Appendix  D. 

2  Richardson  v.  York,  14  Me.  216. 

*  Simpson  v.  Bowden,  33  Me.  549. 

*  Appendix  Q. 

6  Burden  v.  Thayer,  3  T\Iet.  76  ;  Wms.  Real  Prop.  203  ;  Condit  v.  Neighhor, 
13  N.  J.  L.  83;  Co.  Lit.  143  a. 


502  ESTATES   IN   REVERSION. 

§  1521.  Merger  of  Reversion  with  Prior  Estate.  —  If  the  re- 
version and  the  particular  estate  on  which  it  depends  become 
united  in  the  same  person  by  the  same  right,  without  any  in- 
tervening interest,  the  particular  estate  merges  in  the  rever- 
sion ;  or,  in  other  words,  the  reversion  becomes  an  estate  in 
possession  by  removing  or  extinguishing  that  which  interposed 
between  the  right  and  tlie  enjoyment  in  the  reversion.  Such 
would  be  the  effect,  and  by  the  same  course  of  operation,  if, 
instead  of  the  reversion  being  a  freehold,  and  the  particular 
estate  a  term  for  years,  they  were  both  terms  for  years. 
And  even  if  the  particular  estate  were  for  a  larger  num- 
ber of  years  than  the  reversion,  it  would,  nevertheless,  be 
merged  or  extinguished  by  the  union  of  the  two  in  the  same 
person,  and  the  shorter  term  in  reversion  would  alone 
remain.^ 

§  1522.  Reversion  not  affected  by  Disseisin  of  Prior  Estate. — 
It  is  a  familiar  principle,  that  by  a  disseisin,  followed  by  an 
adverse  possession,  for  the  time  fixed  by  statute  as  the  period 
of  limitation,  a  title  may  be  acquired  to  land,  to  the  exclusion 
even  of  him  who  had  an  incontestable  title.  But  as  this  ap- 
])lies  only  as  against  one  who  has  an  immediate  rigbt  of  entry, 
whereby  to  regain  the  seisin  and  possession  so  lost,  if  the  ten- 
ant of  the  particular  estate  be  dispossessed  of  the  estate,  the 
reversioner  is  not  thereby  affected,  nor  does  the  statute  of 
limitations  begin  to  run  until  he  acquires  a  right  of  entry  by  a 
natural  determination  of  the  particular  estate.  Nor  will  the 
reversioner  be  affected  by  a  descent  cast ;  that  is,  by  the  dis- 
seisor dying  seised,  and  his  estate  descending  to  his  heir  during 
the  continuance  of  the  particular  estate.''^ 

§  1523.  Fealty  due  to  Reversioner.  —  It  should  be  remarked, 
that,  theoretically,  fealty  is  always  due  from  the  tenant  of  the 
particular  estate  to  the  holder  of  the  reversion,  as  being  always 
inseparable  from  the  reversion,  and  not  like  rent,  which,  though 
a  usual  incident  to  a  reversion,  is  not  an  inseparable  one.     For 

1  Ante,  §  741,  where  the  subject  is  considered  at  length  ;  Watk.  Conv.  ed. 
1838,  214  ;  2  Flint.  Real  Prop.  314  ;  Hooker  v.  Utica,  etc.  Tiirnp.  Co.,  12  Wend. 
373. 

2  Jackson  d.  Hardenbergh  t'.  Schoonmaker,  4  Johns.  390,  where  the  particular 
estate  was  one  for  life  ;  2  Crabb,  Real  Prop.  983.  See  Washb.  Ease.  110  ;  3d  ed. 
160. 


ESTATES   IN   REVERSION.  503 

tlie  rent  may  be  granted  away,  reserving  the  reversion,  or  the 
reversion  reserving  the  rent,  if  done  by  special  words. ^ 

§  1524,  Reversion  of  Estate  granted  to  a  Corporation.  — 
[Where  an  estate  in  fee-simple  has  been  granted  to  a  corpora- 
tion which  is  afterwards  dissolved,  there  is  no  reversion  to  the 
grantor  or  his  heirs.^  The  property  of  tlie  corporation  there- 
upon becomes  a  trust  fund  to  be  administered  for  the  benefit  of 
the  creditors  primarily,  and  then  of  the  stockholders.^] 

§  1525.  Devise  of  a  Subsequent  Estate  to  Heirs. — At  com- 
mon law,  if  a  man  seised  of  an  estate  limited  it  to  one  for 
life,  remainder  to  his  own  right  heirs,  they  would  take,  not  as 
remainder-men,  but  as  reversioners ;  and  it  would  be,  more- 
ever,  competent  for  him,  as  being  himself  the  reversioner,  after 
making  such  a  limitation,  to  grant  away  the  reversion.  And 
where  he  made  the  limitation  after  a  life-estate  to  his  own 
heirs  by  will,  they  took  as  reversioners,  and  not  as  purchasers.* 
But  by  the  statute  3  &  4  Wm.  IV.  c.  106,  §  3,  a  devise  to  an 
heir  takes  effect  as  such,  though  it  be  of  the  same  estate  he 
would  otherwise  have  inherited. 

1  Co.  Lit.  143  a;  Wms.  Real  Prop.  199  ;  2  Flint.  Real  Prop.  311  ;  Watk.  Conv. 
(ed.  1838)  213;  ante,  §  1192. 

2  Wilson  V.  Leary,  120  N.  C.  90  ;  s.  c.  26  S.  E.  Rep.  630. 

3  5  Thomp.  Corp.  §  6746. 

*  Gilb.  Uses,  Sugd.  ed.  32  and  note  ;  4  Kent,  Com.  506. 


504  REMAINDERS. 


CHAPTER  LXIII. 

REMAINDERS  —  NATURE    AND    CHARACTERISTICS    OP    REMAINDERS. 

§  1526.  Definition. 

1527.  The  particular  estate. 

1528.  Remainders  distinguished  from  reversions. 

1529.  The  creation  of  remainders. 

1530.  Number  of  successive  remainders. 

1531.  Remainder-man  in  esse. 

1532.  Distinction  between  vested  and  contingent  remainders. 

1533.  Illustrations  of  a  vested  remainder. 

1534.  Unbroken  continuity  of  particular  estate  and  remainder. 

1535.  No  remainder  after  fee-simple. 

1536.  When  remainder  takes  effect. 

1537.  In  construing  limitations  courts  prefer  vested  remainders. 

1538.  Illustrations. 

1539.  Remainder  after  fee-tail. 

1540.  The  term  "remainder"  is  not  one  of  art. 

§  1526.  Definition.  —  A  remainder  is  an  estate  or  interest  in 
lands  or  tenements  to  take  effect  in  possession  or  enjoyment 
immediately  upon  the  termination  of  a  prior  estate  which  is 
created  at  the  same  time  and  by  the  same  act  or  instrument 
and  upon  which  such  first-mentioned  estate  is  made  to  depend.^ 
But  it  is  essential  to  a  remainder  that  there  should  be  a  prior 
estate  actually  created.  Thus  where  one  conveyed  a  freehold, 
reserving  a  prior  life-estate  to  himself,  he  parted  with  nothing 
in  the  way  of  a  particular  estate ;  and  therefore  what  he  did 
grant  was  an  estate  after  the  expiration  of  his  own,  and  not  a 
remainder.^  And  it  may  be  added  that  a  remainder-man  al- 
ways takes  by  jnwchase,  and  never  by  descent.^  The  court  of 
Vermont,  however,  in  treating  of  an  interest  of  an  heir  in  his 
ancestor's  estate  who  shall  die  indebted,  assuming  that  such 

i  Co.  Lit.  143  a ;  2  Bl.  Com.  163  ;  Fearue,  Cont.  Rem.  3,  and  Butler's  note  ; 
id.  4  ;  Brown  v.  Lawrence,  3  Cush.  390;  Booth  v.  Terrell,  16  Ga.  20  ;  Leslie  v. 
Maishall,  31  Barb.  560  ;  Doe  ex  dem.  Poor  v.  Considine,  6  Wall.  474. 

2  Bissell  V.  Grant,  35  Conn.   297. 
,      3  Dennett  v.  Dennett,  40  N.  H.  504. 


NATURE    AND    CHARACTERISTICS   OF   REMAINDERS.  505 

interest  is  limited  to  what  shall  remain  after  paying  the  ances- 
tor's debts,  apply  to  it  the  term  remainder :  "  A  vested  remainder 
is  the  strongest  expression  in  their  favor  at  all  descriptive  of 
their  title."  ^ 

§  1527.  The  Particular  Estate.  —  This  prior  estate  is  called 
the  particular  one,  from  particular  part  or  parcel,  of  which, 
with  tlie  remainder,  the  entire  or  whole  estate  is  made  up.  It 
is  this  particular  estate  by  which  the  possession,  or  the  posses- 
sion and  seisin,  as  the  case  may  be,  with  which  the  grantor 
parts  when  he  creates  the  limitation,  are  sustained  until  the 
remainder-man  is  ready  to  take  ;  and  if  there  is  a  break  or 
interval  of  time  between  the  one  and  the  other,  the  second 
estate  would  be  simply  a  future  one,  but  not  in  any  legal  sense 
a  remainder.^  But  the  interests  of  the  particular  tenant  and  the 
remainder-man  are  so  independent  and  distinct,  that  the  former 
can  make  no  claim  upon  the  latter  for  improvements  made  by 
him  upon  the  estate.^  Nor  can  he  make  any  agreement  which 
Avill  bind  the  estate  of  the  remainder-man.* 

§  1528.  Remainders  distinguished  from  Reversions.  —  Both  re- 
versions and  remainders  are  dependent  upon  a  prior  particular 
estate  and  take  effect  in  enjoyment  immediately  upon  the  ter- 
mination of  such  estate  ;  and  there  can  be  no  remainder  where 
there  can  be  no  reversion.  But  the  converse  of  the  proposition 
is  not  strictly  true.  Thus,  if  a  grant  be  made  to  A  and  his 
heirs  so  long  as  a  certain  tree  stands,  it  constitutes  a  base  or 
determinable  fee,  since  it  assumes  that  the  estate,  though  a  fee, 
may  determine  at  some  time.  If  it  does  determine,  the  estate 
will  come  back  to  him  who  created  it,  in  the  nature  of  a  revei'- 
sion.  But  still  it  is  not  such  an  interest  as  is  regarded  by  law 
as  susceptible  of  being  limited  by  way  of  a  remainder,  because 
the  first  estate  limited  was,  in  terms,  a  fee.^     And  it  may  be 

1  Langdon  v.  Strong,  2  Vt.  234,  254. 

2  Wms.  Real  Prop.  197  ;  Burt.  Real  Prop.  §§  28-30  ;  Prest.  Est.  93  ;  Wilkes' 
V.  Lion,  2  Cow.  333,  389  ;  Hennessy  v.  Patterson,  85  N.  Y.  91 ;  Watk.  Conv.  174, 
177  n.;  2  Flint.  Real  Prop.  258. 

3  Thurston  v.  Dickinson,  2  Rich.  Eq.  317. 
*  Hill  V.  Roderick,  4  Watts  &  S.  221. 

»  2  Flint.  Real  Prop.  265;  1  Eq.  Cas.  Ahr.  186.  The  reader  should  hear  in 
mind  that  the  propositions  in  the  text  relate  to  the  common  law  rules  of  prop- 
erty'. The  limitation  of  future  estates  by  way  of  executory  devises  and  springing 
and  shifting  uses  remains  to  he  considered. 


506  REMAINDERS. 

stated  as  a  general  proposition,  that  if  a  fee  be  given  by  way 
of  a  vested  limitation,  but  a  determinable  one,  and  a  remainder 
be  limited  after  it,  such  remainder  can  only  take  effect  as  an 
executory  estate.^ 

§  1529.  The  Creation  of  Remainders.  —  [The  reader  is  pre- 
sumed to  understand,  what  has  already  been  explained  at 
length,  the  method  of  creating  an  estate  for  years  in  prcesenti, 
as  well  as  the  creation  of  an  estate  of  freehold  in  prcescnti  by 
livery  of  seisin,  and  the  imperative  feudal  dogma  of  the  com- 
mon law  that  a  distinct  independent  freehold  estate  in  land 
cannot  be  created  to  commence  m  futuro.~\  In  order  practi- 
cally to  apply  these  principles  to  the  theory  of  creating  future 
estates  in  land,  whose  possession  and  enjoyment  are  post- 
poned for  a  longer  or  shorter  time,  let -it  be  supposed  that  the 
owner  of  a  fee-simple  wishes  to  create  an  estate  in  favor  of 
A  B  for  twenty  years.  To  effect  this,  after  entering  into  a 
proper  contract,  he  simply  puts  A  B  into  possession  of  the 
land,  but  does  not  part  with  his  own  seisin,  though  he  does 
with  his  possession.  So  far  as  the  seisin  is  concerned,  A  B 
is  his  bailiff,  acting  for  him  in  keeping  it.^  Suppose,  instead 
of  simply  creating  this  estate  in  A  B,  the  owner  has  at  the 
same  time,  and  by  the  same  deed,  given  to  C  D  all  his  estate 
in  the  land  except  what  was  given  thereby  to  A  B,  and  A  B 
has  accepted  this  deed  as  the  grant  under  which  he  is  to  hold 
his  estate.  He  will  in  this  way  have  assented  to  act  for  C  D, 
as  he  would  have  acted  for  the  owner  in  the  former  case  sup- 
posed, so  far  as  holding  the  seisin  unimpaired  for  him  as  such 
owner,  since  that,  in  effect,  was  the  condition  upon  which  alone 
he  entered  upon  his  estate.  The  grantor,  in  the  latter  case, 
will  have  parted  with  his  entire  seisin,  and  transferred  it  to  C  D, 
through  the  agency  of  A  B,  when  the  latter  has  taken  posses- 
sion, in  carrying  into  effect  the  grant  in  his  own  favor,  and, 
ipso  facto,  become  for  that  purpose  the  bailiff  of  C  D.^  In  the 
cases  above  supposed,  the  estate  in  A  B  might  as  easily  have 
been  for  life  as  for  years,  except  that  to  make  it  for  life  there 

1  Doe  ex  clem.  Herbert  v.  Selby,  2  Barn.  &  C.  930  ;  Hennessy  v.  Patterson, 
85  N.  Y.  91. 

2  Brodie  v.  Stephens,  2  Jolina.  289. 

8  Co.  Lit.  143  a  ;  2  Flint.  Real  Prop.  259;  Watk.  Conv.  175,  177,  Coventry's 
note  ;  Wms.  Real  Prop.  206  ;  a7ite,  §  109  e^  seq. 


NATURE    AND    CHARACTERISTICS   OF   REMAINDERS.  507 

must  have  been  a  livery  of  seisin  to  the  first  taker,  and  the 
seisin  and  possession  would  both  thereby  have  been  intrusted 
to  him,  in  order  to  enable  him  to  meet  the  requirements  of  the 
feudal  tenure.  But  as  the  tenant  takes  by  a  deed  which  ex- 
pressly recognizes  a  concurrent  ownership  of  the  land  in  an- 
other, out  of  whose  larger  estate  his  own  has  been  derived  as  a 
])art  of  the  same,  he  is,  by  implication  of  law,  regarded  as 
holding  in  accordance  with  and  not  adversely  to  the  title  of  the 
owner  of  the  general  fee,  and  as  holding  the  seisin  of  the 
estate  for  the  common  benefit  of  both,  according  to  their  re- 
spective interests  and  estates.  Consequently,  for  the  purpose 
of  keeping  alive  that  entity,  the  seisin,  the  tenant  acts  for  the 
general  owner,  until  the  same  actually  passes  to  the  latter  on 
the  termination  of  the  estate  of  the  former.^  In  one  of  the 
cases  above  supposed,  the  general  owner  having  only  parted 
with  a  term  of  years  or  a  life-estate  to  A  B,  the  balance  of  the 
fee  remains  in  him,  to  which  the  law  gives  the  name  of  a 
reversion.  In  the  other,  when  he  parted  with  the  life-estate  or 
the  term  to  A  B,  he,  at  the  same  time  and  by  the  same  deed, 
parted  with  all  besides  that  to  C  D,  who  thereby  acquired  what 
thus  remained  of  the  entire  estate,  except  what  was  granted  to 
A  B  ;  and  to  this  the  law  gives  the  name  of  a  remainder. 

§  1530.  Number  of  Successive  Remainders.  —  This  subdivision 
might  be  carried  still  farther,  and  with  the  same  effect ;  as  if, 
instead  of  an  estate  to  A  B  for  years  or  life,  and  then  to  C  D  in 
fee,  it  had  been  to  A  B  for  years  or  life,  and  then  to  J  S  for 
life  or  years,  and  then  to  C  D  in  fee,  limiting  any  number  of 
remainders,  one  after  the  other,  provided  the  last  one  only  was 
a  fee-simple ;  for  when  the  fee-simple  had  been  given  to  any 
one,  there  would  be  nothing  further  which  the  grantor  could 
give.2  And  the  remainder-man  in  such  case  takes  by  the  deed, 
though  a  stranger  thereto.^  This  may  seem  to  be  occupying 
too  much  space  in  illustrating  what  is,  in  fact,  so  simple  a  rule 
of  law.  But  it  is  hoped  that  it  will  aid  in  defining  a  remainder, 
and  simplifying  what  must  necessarily  at  times  become  com- 
plex, and  difficult  of  application. 

1  Wms.  Real  Prop.  206. 

2  Wins.  Real  Prop.  208  ;  Fearne,  Cent.  Rem.  4,  Butler's  note. 
8  Phelps  V.  Phelps,  17  Md.  134. 


508  REMAINDERS. 

§  1531.  Remainder-man  in  esse.  —  Provided  the  estate  be  so 
limited  that  there  is  always  some  one  in  esse  who  holds  the 
seisin,  there  is  no  violence  done  to  the  rules  of  the  common 
law,  whether  the  one  who  is  to  take  the  secondary  estate  is  in 
esse  or  ascertained  at  the  time  of  creating  the  estate,  or  be- 
comes in  esse  or  is  ascertained  afterwards,  provided  he  be  ready 
to  take  the  seisin  the  instant  the  estate  with  the  seisin  in  the 
first  taker  determines  by  its  natural  limitation.  Thus,  an  es- 
tate might  be  to  A  for  years  or  for  life,  with  a  remainder  to  B 
in  fee  who  is  a  known  person  in  esse,  or  to  A  for  life,  remainder 
to  the  oldest  son  of  B  in  fee,  though  B  at  the  time  of  creating 
the  estate  had  no  son,  and  the  remainder  might  be  in  suspense 
until  B  died  or  had  a  son.  But,  in  the  latter  case,  A's  estate 
must  obviously  be  a  freehold,  in  order  to  his  keeping  the  seisin, 
until  there  shall  be  a  remainder-man  ready  and  capable  to  take 
it ;  and  this  A  cannot  do  if  his  interest  is  only  a  chattel  one. 

§  1532.  Distinction  betTween  Vested  and  Contingent  Remain- 
ders. —  The  first  of  these  supposed  cases  presents  what  is  known 
as  a  vested  remainder.  The  latter  exemplifies  what  are  called 
contingent  remainders.  The  broad  distinction  between  vested 
and  contingent  remainders  is  this  :  In  the  first,  there  is  some 
person  in  esse  known  and  ascertained,  who,  by  the  will  or  deed 
creating  the  estate,  is  to  take  and  enjoy  the  estate  upon  the  ex- 
piration of  the  existing  particular  estate,  and  whose  right  to 
such  remainder  no  contingency  can  defeat.^  In  the  second,  it 
depends  upon  the  happening  of  a  contingent  event  whether  the 
estate  limited  as  a  remainder  shall  ever  take  effect  at  all.  The 
event  may  either  never  happen,  or  it  may  not  happen  until  after 
the  particular  estate  upon  which  it  depended  shall  have  deter- 
mined, so  that  the  estate  in  remainder  will  never  take  effect.^ 
Among  the  definitions  of  a  vested  remainder  is  the  following  : 
"  When  a  present  interest  passes  to  a  certain  and  definite  per- 
son to  be  enjoyed  infuturoP  ^    Preston  says  :  "  It  is  the  present 

1  Brown  r.  Lawrence,  3  Cush.  390,  397  ;  Leslie  v.  Marshall,  31  Barb.  564  ; 
Croxall  V.  Shererd,  5  Wall.  288. 

2  2  Cruise,  Dig.  204  ;  Price  v.  Sisson,  13  N.  J.  Eq.  176  ;  Hawley  v.  James, 
5  Paige,  318,  466;  Williamson  v.  Field,'  2  Sandf.  Ch.  553;  Moore  v.  Lyons, 
25  Wend.  144  ;   Leslie  v.  Marshall,  31  Barb.  564. 

3  Doe  d.  Poor  v.  Considine,  6  Wall.  474-476.  The  possibility  that  the  per.son 
to  whom  the  remainder  is  given  may  die  in  the  life  of  the  life-tenant  does  not  make 


NATURE    AND    CHARACTERISTICS   OF   REMAINDERS.  509 

capacity  of  taking  effect  in  possession,  if  the  possession  were 
fallen."  i 

§  1533.  Illustrations  of  a  Vested  Remainder.  —  A  grant  to  W. 
for  life,  and  at  her  decease  to  be  and  become  the  proi)erty  of 
lier  children  and  their  legal  representatives,  is  a  present  vested 
remainder  in  her  children  ;  and  one  of  them  having  died  in  W.'s 
lifetime,  his  share  went  to  his  heirs.^  So  a  devise  to  A  for  life, 
remainder  to  his  children,  and  if  either  shall  have  died  before 
A's  death,  leaving  issue,  such  issue  to  take  the  parent's  share, 
was  held  a  vested  remainder  in  the  children.^  In  another  case, 
a  devise  to  A  for  life,  and  at  her  death  to  her  oldest  son,  if"  she 
have  one.  She  then  had  a  son  living,  who  was  living  at  the 
testator's  death  ;  and  it  was  held  to  be  a  vested  remainder,  since 
the  contingency  only  related  to  a  state  of  things  existing  at  tes- 
tator's death.^  So,  where,  by  a  marriage  settlement,  an  estate 
was  to  C  during  her  life,  with  a  power  of  appointment,  and  then 
to  the  child  or  children  of  C  in  fee,  but  if  C  dies  leaving  issue, 
and  such  issue  should  die  before  attaining  majority,  then,  from 
and  after  the  decease  of  such  issue  to,  etc.  C  died,  leaving 
three  children  without  having  made  an  appointment,  and  two 
of  them  lived  to  be  of  age  :  it  was  held  to  be  a  vested  remainder 
in  the  three  as  tenants  in  common.^ 

§  1534.  Unbroken  Continuity  of  Particular  Estate  and  Remain- 
der. —  Whether  vested  or  contingent,  it  is  essential  to  a  re- 
mainder, for  the  reasons  above  stated,  and  is  an  imperative 
rule  of  law,  that  it  should  take  effect  immediately  on  the  deter- 
mination of  the  prior  estate,  the  particular  estate  and  remain- 
der together  forming  one  continuous  ownership.  Otiierwise, 
instead  of  being  an  estate,  it  would  be  a  mere  contract  for  an 

the  remainder  contingent,  for  it  is  certain  that  the  remainder  nnght  take  effect  npon 
the  termination  of  the  life-estate  at  any  time.  Kemp  v.  Bradford,  61  Md.  330 ; 
McArthur  v.  Scott,  113  U.  S.  430  ;  Weston  v.  Weston,  125  Mass.  268  ;  Moore  v. 
Lyons,  25  Wend.  119,  144  ;  Commonwealth  v.  Hackett,  102  Penn.  St.  505.  But 
cotitra,  Hinton  i;.  Milburn,  23  W.  Va.  166.     See  post,  §  1541. 

1  1  Prest.  Est.  70.  See  Moore  v.  Lyons,  25  Wend.  119  ;  Blanchard  v.  Blan- 
chard,  1  Allen,  227. 

2  Gourley  v.  Woodbury,  42  Vt.  395  ;  Commonwealth  v.  Hackett,  102  Peun.  St. 
505. 

3  Hill  V.  Baron,  106  Mass.  578. 

*  Gardiner  v.  Guild,  106  Mass.  25. 
^  Inches  v.  Hill,  106  Mass.  575. 


510  REMAINDERS. 

estate  to  take  effect  at  a  future  time  ;  and  if  this  was  a  free- 
hold, it  could  not  be  created  to  commence  in  that  manner.^ 
Consequently,  no  remainder  can  be  created  without  a  particular 
estate  to  suppoi't  it ;  and  it  must  be  so  limited  as  to  take  effect 
immediately  on  the  regular  and  natural  determination  of  this 
prior  estate,  and  not  so  as  to  abridge  it.^  And  for  the  reasons 
stated,  this  particular  estate  must,  in  case  of  a  contingent  re- 
mainder, be  one  of  freehold.^  Although  at  common  law,  if  this 
particular  estate  was  by  any  means  defeated,  or  had  expired 
before  the  contingent  remainder  vested,  the  latter  must  have 
failed  altogether,  this  is  now  corrected  by  statute  in  England, 
and  in  most  if  not  all  the  United  States,  though  this  does 
not  affect  the  manner  of  creating  this  class  of  remainders 
originally.^ 

§  1535.  No  Remainder  after  Fee-simple.  —  From  the  doctrine 
above  stated,  that  the  particular  estate  and  remainder  form  to- 
gether when  united  but  one  estate  of  the  extent  or  duration  of 
the  two,  it  follows,  that,  while  ever  so  many  remainders  in  suc- 
cession may  be  carved  out  of  a  fee-simple  if  each  is  less  than  a 
fee,  no  remainder  can  be  limited  after  a  fee  ;  for  when  a  fee  has 
once  been  created,  there  can  be  nothing  left  by  way  of  remain- 
der to  give  away.  Nor  does  it  make  any  difference  that  this 
fee  is  a  qualified  one  ;  for  so  long  as  it  exists  it  is  deemed  to 
be  indefinite  in  its  duration,  and  no  remainder  can  be  expectant 
upon  it.^  It  has  accordingly  been  held,  that,  if  an  estate  is 
given  to  one  with  a  full  and  absolute  power  of  control  and 
disposal,  there  can  properly  be  no  remainder  limited  after  his 
estate,  though  this  w^as  in  terms  a  contingent  one.  Thus, 
where  the  devise  was  to  A  and  his  heii's,  and  if  he  should  die 
and  leave  no  heirs,  what  estate  he  should  leave  was  devised  to 
J.  S.,  it  was  held  that  the  devise  to  J.  S.  was  void,  from  the  im- 

1  1  Prest.  Est.  93  ;  2  Flint.  Real  Prop.  263  ;  Doe  d.  Poor  v.  Considiue,  6  Wall. 
474. 

2  1  Prest.  Est.  91  ;  Hennessy  v.  Patterson,  85  N.  Y.  91. 

*  Watk.  Conv.  175,  n.  181  ;  Wms.  Real  Prop.  224  ;  Doe  d.  Poor  v.  Considine, 
supra. 

*  Stat.  8  &  9  Vict.  c.  106,  §  8  ;  Wms.  Real  Prop.  233,  Rawle's  note.  See  note 
at  the  end  of  chapter  Ixviii. 

5  Wimple  V.  Fonda,  2  Johns.  288  ;  Co.  Lit.  18  a,  143  a  ;  2  Flint.  Real  Prop. 
257  ;  Willion  v.  Berkley,  Plowd.  235;  Seymour's  case,  10  Rep.  97  ;  Fearne,  Cont. 
Rem.  308. 


NATURE   AND    CHARACTERISTICS   OP   REMAINDERS.  511 

plied  power  of  disposal  of  the  estate  given  to  the  first  devisee.^ 
Though  a  similar  devise  in  England  has  heen  held  good  as  an 
executory  devise  to  J.  S.  ;  as  where  the  estate  was  to  A  and 
his  heirs,  but  if  he  died  without  leaving  issue,  "  and  he  shall 
not  have  disposed  or  parted  with  "  the  estate,  then  over,  it  was 
held  to  be  subject  to  A's  disposal  by  deed  during  his  life,  but 
not  after  his  death  by  will ;  and  he  having  failed  to  convey  it 
by  deed,  the  devise  over  was  held  to  be  good.^  It  was  early 
decided,  that  upon  a  devise  to  A  and  his  heirs,  so  long  as  J.  S. 
had  issue,  and,  after  the  death  of  J.  S.  without  issue,  remainder 
over  to  another,  the  devise  of  the  remainder  was  void,  as  the  first 
taker  had  a  fee.^ 

§  1536.  Remainders  take  Effect  at  the  Natural  Termination  of 
the  particular  estate.  They  cannot  take  effect  in  derogation 
of,  or  in  substitution  for,  the  prior  estate.  But  it  is  competent 
to  create  by  devise  an  estate  in  one  and  his  heirs,  and  yet  so 
limit  it,  that,  upon  the  happening  of  some  condition  or  contin- 
gent event,  his  estate  shall  cease,  and  go  over  to  another.  Now, 
the  first  cannot  be  a  particular  estate,  for  it  is  in  its  terms  a 
fee ;  and  if  the  condition  or  event  do  not  happen,  it  will  forever 
remain  a  fee.  The  second  cannot  be  a  remainder,  because  it 
is  not  to  take  effect  at  the  natural  determination  of  the  first, 
for,  that  being  a  fee,  such  a  determination  could  never  happen  ; 
but  it  comes  in  and  destroys  or  defeats  the  first  estate  before 
its  natural  expiration,  and  becomes  substituted  in  the  place  of 
the  other.  Nor  is  there  a  conditional  estate  at  common  law  in 
the  first  taker  ;  for  if  there  was,  no  one  but  the  heirs  or  devisees 
of  the  devisor  could  take  advantage  of  it,  and  then  only  by 
regaining  the  original  estate  by  entry,  which  would  not  go  over 
to  the  second  devisee  named,  but  remain  in  the  original  owner 
or  his  heirs.  The  courts  therefore  hold,  that,  though  an  estate 
thus  limited  cannot  take  effect  as  a  remainder,  it  shall  be  held 
by  the  first  taker  as  a  conditional  limitation ;  that  is,  his  estate, 

1  Ide  V.  Ide,  5  Mass.  500  ;  Jackson  d.  Livingston  v.  De  Lancy,  13  Johns.  5.57  ; 
Atty.-Gen.  v.  Hall,  Fitzg.  314  ;  McLean  v.  Macdonaid,  2  Barb.  534  ;  Kelly  v. 
Mains,  135  Mass.  231  ;  Damrell  v.  Haitt,  137  Mass.  218.  But  if  the  power  of  dis- 
posal is  limited,  aliter.  Whitconib  v.  Taylor,  122  Mass.  243,  and  other  cases, /30S^, 
§  1770. 

2  Doe  d.  Stevenson  v.  Glover,  1  C.  B.  448.  See  Andrews  v.  Roye,  12  Rich. 
544. 

3  1  Eq.  Gas.  Abr.  185.  See  also  2  Cruise,  Dig.  203  ;  Bowman  v.  Lobe,  12  Rich. 
Eq.  271. 


612  REMAINDERS. 

though  nominally  a  fee,  is  limited  in  its  duration  by  the  hap- 
pening of  the  condition  or  contingent  event ;  that  as  soon  as 
that  happens,  if  at  all,  his  estate  ceases,  and  then  the  residue 
of  tiie  fee  passes  like  a  remainder  over  to  the  devisee,  who,  by 
the  devise,  is  to  take  upon  the  happening  of  such  event.^ 

§  1537.  In  construing  Limitations  Courts  prefer  Vested  Remain- 
ders. —  A  limitation  is  never  construed  as  an  executory  devise, 
when  it  is  capable  of  taking  effect  as  a  remainder ;  nor  is  a 
remainder  ever  deemed  to  be  a  contingent  one  when  it  can  be 
construed  to  be  vested,  within  the  intention  of  the  one  who 
creates  it.^  Moreover,  the  law  holds  that  estates  vest  at  the 
earliest  possible  period,  unless  there  is  a  clear  manifestation  of 
an  intention  on  the  part  of  the  testator  to  the  contrary.^  A 
remainder  to  an  unborn  child  becomes  vested  while  he  is  en 
ventre  sa  mere.^ 

§  1538.  Illustrations.  —  There  was  a  devise  to  A  for  life, 
remainder  to  his  children  then  living,  and  the  lawful  issue  of 
such  as  had  deceased,  their  heirs  and  assigns.  For  want  of 
such  children,  there  was  a  devise  over  to  the  right  heirs  of  the 
testator.  A  died  unmarried  ;  and  the  question  was  as  to  the 
time  to  which  reference  was  to  be  had  in  determining  who  were 
to  take  as  heirs  of  the  testator,  —  his  death,  or  the  death  of  A  ; 
and  it  was  held  to  be  those  who  were  his  heirs  at  his  death. 
It  was  held  to  be  a  contingent  remainder,  with  a  double  aspect, 
to  A's  children  in  fee  if  he  had  any ;  if  he  had  none,  to  who- 
ever were  testator's  heirs  at  his  death,  unless  otherwise  clearly 

1  Fearne,  Cont.  Rem.  3,  407,  and  Butler's  note,  10  ;  Watk.  Conv.  179,  Coven- 
try's note,  204;  Brattle  Sq.  Ch.  u.  Grant,  3  Gray,  149;  Hennessy  v.  Patterson, 
85  N.  Y.  91  ;  Watk.  Descent  {2d  ed.),  248;  2  Cruise,  Dig.  238  ;  1  Prest.  Est.  91; 
( 'ogan  11.  Cogan,  Cro.  Eliz.  360  ;  Pells  v.  Brown,  Cro.  Jac.  590  ;  2  Fearne,  Cont. 
Rem.  Smith's  ed.  §§  158-160  ;  Horton  v.  Sledge,  29  Ala.  495,  496. 

2  Blanchard  v.  Blancliard,  1  Allen,  225  ;  Teele  v.  Hathaway,  129  Mass.  164, 
166  ;  Darling  r.  Blanchard,  109  Mass.  176,  177;  Johnson  v.  Valentine,  4  Sandf. 
36  ;  Manderson  v.  Lukens,  23  Penn.  St.  31  ;  Doe  d.  Herbert  v.  Selby,  2  Barn.  &C. 
930  ;  Leslie  v.  Marshall,  31  Barb.  566. 

3  Doe  d.  Poor  v.  Considine,  6  Wall.  475  ;  Hinton  v.  Milburn,  23  W.  Va.  166. 
So  where  a  testator  provided  that  the  residue  of  his  estate  should  be  divided 
"among  my  legal  heirs  under  the  laws  of  the  State  of  Marj'land  in  the  same  way 
that  it  would  without  a  will,"  and  that  a  legac}'  should  go  to  "such  person  or 
2>ersons  as  would  by  the  now  existing  laws  of  the  State  of  Maryland  be  entitled  to 
take  an  estate  in  fee-simple  in  lands  by  descent  from  me,"  it  was  held  that  in  both 
cases  the  gift  vested  at  the  decease  of  the  testator.     Crisp  v.  Crisp,  61  Md.  149. 

*  Crisfield  v.  Storr,  36  Md.  129. 


NATURE    AND    CHARACTERISTICS    OF   REMAINDERS.  513 

expressed.^  The  following  case  may  illustrate  tlic  difficulty 
there  sometimes  is  in  determining  whether  a  given  limitation 
of  a  future  estate  is  a  remainder  or  not.  T.  G.  by  will  gave  to 
his  son  S.  H.  G.  the  use  of  an  estate,  "  also  to  his  lawful  chil- 
dren ;  and  in  case  of  his  death  without  children,  then  to  be 
equally  divided  between  his  five  daughters,"  "  and  their  heirs 
forever."  The  wife  of  S.  H.  G.  was  enceinte  wlien  the  testator 
died,  but  had  no  children  then  born.  She  subsequently  had 
four  who  were  living  at  the  death  of  S.  H.  G.  Ritchie,  C.  J., 
in  an  able  and  elaborate  opinion,  reversed  that  of  the  Master 
of  the  Rolls,  who  held  the  devise  to  be  to  S.  H,  G.  or  his  chil- 
dren in  fee,  and  held  it  to  be  a  life-estate  in  S.  H.  G. ,  with  a 
remainder  to  his  children.  In  either  case,  the  daughters  would 
have  taken  by  way  of  executory  devise  had  S.  H.  G.  died  with- 
out children.  And  the  first  devise  being  to  S.  H.  G.,  "  also  to 
his  lawful  children,"  might  readily  have  led  any  one  to  the 
same  conclusion  with  the  Master  of  the  Rolls ;  and  the  Chief 
Justice  remarks  in  giving  his  opinion,  "  The  case  is  by  no 
means  free  from  difficulties."  ^ 

§  1539.  Remainder  after  Fee-tail.  —  The  effect  of  the  fore- 
going doctrine  would  be,  that,  had  estates-tail  remained  as  they 
were  at  common  law,  there  could  never  be  a  remainder  limited 
upon  the  failure  of  issue  in  the  tenant  in  tail.  Such  estates 
were  deemed  conditional  fees,  determinable  only  upon  the 
donee's  dying  witliout  issue.  But  since  the  statute  de  donis 
turned  the  estate  of  the  tenant  in  tail  theoretically  into  an 
estate  for  life,  whicli  is  certain  to  have  a  natural  termination 
at  his  death,  it  is  entirely  compatible  with  the  rules  of  law  to 
limit  a  remainder  after  his  death,  to  take  effect  if  he  dies 
without  issue.^ 

§  1540.  The  Term  "  Remainder  "  is  not  one  of  art,  which  it  is 
necessary  to  employ  in  creating  an  estate  in  expectancy,  such  as 
has  been  described.  Any  form  of  expression  indicating  the  inten- 
tion of  the  grantor  or  devisor  to  do  this  would  be  sufficient.* 

1  Bnzby's  App.,  61  Penn.  St.  Ill,  117  ;  Minot  v.  Tappan,  122  Mass.  535  ;  Dove 
V.  Tarr,  128  Mass.  38  ;  Abbott  v.  Bradstreet,  3  Allen,  587. 

2  Gonrley  V.  Gilbert,  1  Hannay  (N.  B.),  80. 

8  Willion  V.  Berkley,  Plowd.  235  ;  Wilkes  v.  Lion,  2  Cow.  333,  392  ;  Hall  v. 
Priest,  6  Gray,  18. 
4  2  Cruise,  Dig.  203. 
VOL.  II.  —  33 


514  VESTED    REMAINDERS. 


CHAPTER  LXIV. 

VESTED    REMAINDERS. 

§  1541.  Definition. 

1542.  Vesting  in  interest,  vesting  in  possession. 

1543.  "  Present  capacity"  explained. 

1544.  Remainders  construed  as  vested  rather  than  contingent. 

1545.  Vested  remainder  to  class  some  of  whose  members  not  in  esse. 

1546.  Alienation  of  vested  remainders. 

1547.  Defeat  of  particular  estate  defeats  remainder. 

1548.  Exceptions  to  foregoing  rule. 

1549.  No  tenure  between  remainder  and  particular  estate. 

1550.  Remainders  must  be  limited  in  a  j)rescribed  order. 

1551.  Of  contingent  remainders  becoming  vested. 

§  1541.  Definition.  —  A  vested  remainder  is  one  the  owner 
of  which  has  the  present  capacity  of  taking  tlie  seisin  in  case 
the  particular  estate  were  to  determine. ^  But  no  degree  of 
uncertainty  as  to  the  remainder-man's  ever  enjoying  his  re- 
mainder will  render  it  contingent,  provided  he  has,  by  the  limi- 
tation, a  present  absolute  right  to  enjoy  the  estate  the  instant 
the  prior  estate  shall  determine.  Thus,  if  an  estate  is  given 
to  A  for  years,  remainder  to  B  for  years  or  life,  remainder  to 
C  for  life,  each  of  these  persons  being  alive  and  having  a  per- 
fect right  to  the  land  in  the  order  named,  B  or  C,  for  instance, 
being  only  postponed  in  the  enjoyment  of  his  estate  till  the 
preceding  tenant's  term  or  li.fe  shall  end,  has  a  vested  re- 
mainder. And  yet  C  may  die  before  B's  estate,  or  B  before 
A's  estate,  shall  be  determined,  so  that  neither  may  ever,  in 
fact,  enjoy  any  benefit  or  estate  whatever  in  the  land.^     On 

1  Ante,  §  1532. 

2  Parkhurst  v.  Smith,  Willes,  338  ;  AVatk.  Conv.  173,  Coventry's  note  ;  2  Flint. 
Real  Prop.  267;  Wms.  Real  Prop.  207;  Fearne,  Cont.  Rem.  216  ;  Williamson  i-. 
Field,  2  Sandf.  Ch.  533  ;  Manderson  v.  Lukens,  23  Penn.  St.  31.  See  ante,  §  1532, 
note  2.  The  fact  that  the  widow,  to  whom  a  life  estate  is  given  by  will,  has  a 
right  to  renounce  the  will  and  elect  to  take  her  share  of  the  estate,  does  not  ren- 
der the  remainder  limited  over  after  the  life-estate  contingent.  Marvin  v.  Led  with, 
111  111.  144. 


VESTED   REMAINDERS.  515 

the  other  hand,  had  the  estate  to  C  been  in  fee  instead  of  for 
life,  though  he  might  not  have  lived  to  enjoy  it,  it  would  de- 
scend to  his  heirs,  who  would  take  in  his  place ;  or,  whether 
in  fee  or  for  a  less  estate,  he  might  have  conveyed  it  in  his 
lifetime  by  deed,  and  his  grantees  would  take  the  same  rights 
in  respect  to  it  that  he  himself  possessed.^ 

§  1542.  Vesting  in  Interest,  vesting  in  Possession.  —  An 
estate  is  accordingly  said  to  be  vested  in  one  in  possession 
when  there  exists  in  his  favor  a  right  of  present  enjoyment. 
It  is  vested  in  interest  when  there  is  a  present  fixed  right  of 
future  enjoyment. 2  Thus  a  devise  to  A  for  life,  remainder  to 
B  in  fee  at  his  death,  would  be  a  vested  remainder,  if  B  is  in 
esse  ;  and  if  he  die  before  A,  the  estate,  at  A's  death,  would  go 
to  his  [B's]  heirs.^  In  this  sense,  therefore,  a  vested  remainder 
is,  to  all  intents,  an  estate  commencing  in  prccsenti^  though  to 
be  enjoyed  infuturo.^ 

§  1543.  Present  Capacity  explained.  —  "  The  present  capacity 
of  taking  effect  in  possession,  if  the  possession  were  now 
to  become  vacant,  and  not  the  certainty  that  the  possession 
will  become  vacant  before  the  estate  limited  in  remainder 
determines,  universally  distinguishes  a  vested  remainder  from 
one  that  is  contingent."  ^  By  capacity^  as  thus  applied,  is  not 
meant  simply  that  there  is  a  person  in  esse  interested  in  the 
estate,  who  has  a  natural  capacity  to  take  and  hold  the  estate, 
but  that  there  is  further  no  intervening  circumstance,  in  the 
nature  of  a  precedent  condition,  which  is  to  happen  before 
such  person  can  take.  As,  for  instance,  if  the  limitation  be  to 
A  for  life,  remainder  to  B,  B  has  a  capacity  to  take  this  at  any 
moment  when  A  may  die.  But  if  it  had  been  to  A  for  life, 
remainder  to  B  after  the  death  of  J.  S.,  and  J.  S.  is  still  alive, 
B  can  have  no  capacity  to  take  till  J.  S.  dies.  When  J.  S.  dies, 
if  A  is  still  living,  the  remainder  becomes  vested  ;  but  not  before. 

1  Wms.  Real  Prop.  207  ;  2  Cruise,  Dig.  203,  n. 

2  Watk.  Conv.  173,  Coventry's  note  ;  4  Kent,  Com.  202  ;  Fearne,  Cont.  Rem.  2  ; 
Marshall  v.  King,  24  Miss.  90. 

3  Allen  V.  Mayfield,  20  Ind.  293. 

*  2  Flint.  Real  Prop.  259 ;  Pearce  v.  Savage,  45  Me.  101. 

6  Fearne,  Cont.  Rem.  216  ;  Co.  Lit.  265,  note  213.  See  2  Greenl.  Cruise,  Dig. 
210,  n.  ;  Brown  v.  Lawrence,  3  Cush.  390,  397  ;  Croxall  v.  Sherard,  5  Wall.  288. 
Seeajite,  §§  1532,  1579. 


516  VESTED    REMAINDERS. 

And  as  the  common  law  stood,  if  A  died  in  the  life  of  J.  S., 
the  remainder  in  B  would  fail,  although  he  was  then  alive.^ 

§  1544.  Remainders  construed  as  vested  rather  than  con- 
tingent.—  From  the  fact  that,  while  a  remainder  is  contingent 
by  reason  of  the  person  who  is  to  take  it  not  being  ascertained, 
it  is  not  capable  of  alienation,  as  well  as  because,  at  common 
law,  it  was  always  possible  to  defeat  such  a  remainder  by 
destroying  the  particular  estate  before  the  remainder  vested, 
courts  have  always  been  inclined  to  construe  the  limitation  of 
a  remainder  as  a  vested  one,  wherever  the  terms  in  which  it 
is  created  will  admit  of  such  construction.^  Thus,  upon  a 
devise  to  A  for  life,  remainder  to  the  surviving  children  of 
J.  S.,  it  is  obvious  that,  in  terms,  it  is  equivocal  whether  the 
surviving  relates  to  the  death  of  the  testator  or  of  A.  If  to  the 
latter,  the  remainder  must  be  contingent,  since  no  one  can 
tell  who  will  be  such  survivors  until  the  death  of  A.  Whereas, 
if  the  term  relate  to  the  testator's  death,  and  J.  S.  then  have 
children,  the  remainder  is  a  vested  one,  since  there  is  then  an 
ascertained  person  in  esse,  capable  of  taking  the  estate  in 
prcesenti  at  any  moment.  And  accordingly  courts  construe 
an  estate  thus  limited  to  be  a  vested    remainder.^     Another 

1  1  Prest.  Est.  70  ;  Co.  Lit.  265,  note  213  ;  2  Cruise,  Dig.  210  ;  2  Crabb,  Real 
Prop.  966. 

2  Dingley  v.  Dingley,  5  Mass.  535,  537  ;  Doe  d.  Comberbach  v.  Perryn,  3  T.  R. 
484  ;  Doe  d.  Long  v.  Prigg,  8  Barn.  &  C.  231;  Doe  d.  Barnes  v.  Provoost,  4  Johns. 
61 ;  Moore  v.  Lyons,  25  Wend.  119  ;  Boraston's  case,  3  Rep.  20  ;  DufBeld  v.  Duf- 
field,  1  Dow  &  C.  311  ;  Tud.  Lead.  Cas.  680  ;  ante,  §  1537  ;  Den  d.  Hopper  v. 
Deraarest,  21  N.  J.  525  ;  Fay  i;.  Sylvester,  2  Gray,  171;  Croxall  v.  ShererJ,  5  Wall. 
287;  Bigley  v.  Watson,  98  Tenn.  353  ;  s.  c.  39  S.  W.  Rep.  525  ;  Grimmer  v.  Friede- 
rich,  164  111.  245  ;  s.  c.  45  N.  E.  Rep.  498. 

3  Doe  d.  Long  v.  Prigg,  8  Barn.  &  0.  231  ;  Moore  v.  Lyons,  25  Wend.  119  ; 
Leroy  v.  Charleston,  20  S.  C.  71  ;  Chew's  App.,  37  Penn.  St.  23  ;  Bailey  v.  Hoppin, 
12  R.  L  560  ;  Eldridge  v.  Eldridge,  9  Gush.  516  ;  Colhy  v.  Duncan,  139  Mass.  398  : 
Manderson  v.  Lukens,  23  Penn.  St.  31  ;  Buck  v.  Laiitz,  49  Md.  439.  See  post, 
§  1545.  Where  the  devise  was  to  A,  B,  C,  children  of  D,  and  such  other  children 
of  D  as  shall  then  (i.  e.  at  the  date  of  the  expiration  of  the  life-estates)  be  living,  and 
their  heirs  and  assigns,  it  was  held  that  the  children  named  and  those  not  named 
(if  any)  constituted  a  class,  all  members  of  which  could  not  be  ascertained  until  the 
expiration  of  the  life-estates,  and  that  the  vesting  of  the  title,  legal  or  equitable,  in 
possession  or  in  right,  in  those  of  that  class  who  were  named  as  well  as  in  those 
who  were  not  named,  was  contingent  upon  their  surviving  the  tenants  for  life. 
Smith  V.  Rice,  130  Mass  441.  If  the  contingency,  e.  g.  such  as  attaining  majority 
or  surviving  the  life-tenant,  attaches  to  the  possession  of  the  property  devised,  and 


VESTED   REMAINDERS.  517 

illustration  of  this  proposition  is  found  in  a  later  case,  where 
the  devise  was  to  A  for  life,  with  a  devise  over  of  all  the 
property,  real  and  personal,  whicli  might  be  left  at  A's  death 
to  the  testator's  four  children,  by  name,  with  a  provision,  that, 
if  any  of  the  four  children  died  before  A,  the  property  should 
be  equally  divided  among  the  survivors,  "  except  tjjcy  should 
leave  issue,"  and  in  that  case  to  go  to  the  issue.  It  was  held 
to  be  a  vested  remainder  in  the  four  children.  If  it  had  been 
construed  to  be  a  devise  to  such  of  them  as  survived  A,  it 
would  have  been  a  contingent  remainder.  It  was  held,  more- 
over, to  be  a  devise  in  fee,  subject  to  be  divested  upon  the 
happening  of  a  condition  subsequent,  with  a  limitation  over 
upon  the  happening  of  that  contingency,  which  latter  limita- 
tion was  by  way  of  executory  devise.^  But  where  the  devise 
was  in  the  words,  "  Should  my  wife  marry  or  die,  the  land 
then  shall  be  divided  among  my  surviving  sons,"  the  moment 
of  survivorship  was  held  to  be  fixed  at  the  death  or  marriage 
of  the  wife  ;  and,  of  course,  until  that  happened,  it  was  con- 
tingent who  the  persons  were  to  be  who  could  take  as  "  surviv- 
ing sons."  2  It  was  accordingly  held  that  a  limitation  to  a 
wife,  with  a  remainder  to  her  children  surviving,  was  a  contin- 
gent remainder  to  the  children.^  On  the  other  hand,  where 
the  devise  was  to  A  until  B  arrived  at  the  age  of  twenty-one 

not  to  the  gift,  the  interest  of  the  donee  is  vested.  Peterson's  App.,  88  Penn.  St. 
397;  Daniels  v.  Eldridge,  125  Mass.  356  ;  Wright  v.  White,  136  Mass.  470  ;  Hersee 
V.  Simpson,  154  N.  Y.  496  ;  s.  c.  48  N.  E.  Eep.  890  ;  Byrne  v.  France,  131  Mo. 
639  ;  s.  c.  33  S.  W.  Rep.  178. 

1  Blanchard  v.  Blanchard,  1  Allen,  226.  See  Smither  v.  Willock,  9  Ves.  233  ; 
Doe  d.  Roake  v.  Nowell,  1  Maule  &  S.  327  ;  Bentley  v.  Long,  1  Strobh.  Eq.  43  ; 
Phillips  V.  Phillips,  19  Ga.  261  ;  Johnson  v.  Valentine,  4  Sandf.  36  ;  Yeaton  v, 
Roberts,  28  N.  H.  465  ;  Ross  v.  Drake,  37  Penn.  St.  373  ;  Abbott  v.  Bradstreet, 
3  Allen,  589.  But  where  property  was  given  to  one  for  life  with  full  power  of  dis- 
posal, by  deed  or  will,  and  then  remainder  to  another,  it  was  held  that  the  remain- 
der was  contingent  upon  some  estate  remaining  undisposed  of  by  the  life-tenant. 
Taft  V.  Taft,  130  JIass.  461.  This  case  seems  to  hold  that  a  power  of  alienation  in 
the  life-tenant  makes  a  remainder  contingent.     But  see  post,  §  1579. 

2  OIney  v.  Hull,  21  Pick.  311  ;  Denny  v.  Kettell,  131  Mass.  138.  But  "then" 
often  means  "in  that  event,"  and  is  not  merely  limited  to  time.  Lerned  v.  Sal- 
tonstall,  114  Mass.  407. 

3  Matter  of  Ryder,  11  Paige,  185.  See  Smith  v.  Rice,  130  Mass,  441  ;  Robinson 
V.  Palmer,  90  Me.  246 ;  s.  c.  38  Atl.  Rep.  103.  But  see  Thorington  v.  Thorington, 
111  Ala.  237 ;  s.  c.  20  So.  Eep.  407,  which  held  it  to  be  a  vested  remainder  sub- 
ject to  be  divested. 


518  VESTED    REMAINDERS. 

years,  and  then  to  B  in  fee,  it  was  held  to  be  an  absolute 
devise  of  the  estate  to  B,  but  postponing  the  enjoyment  of  it  to 
his  arriving  at  age.  And  being  vested  in  him,  if  he  were  to 
die  before  that  time  it  would  descend  to  his  heirs. ^  A  devise 
to  trustees  to  hold  for  a  daughter  during  her  life,  and,  at  her 
death,  to  convey  the  estate  to  her  children,  was  held  to  create 
a  vested  remainder,  the  enjoyment  of  the  estate  being  post- 
poned to  the  death  of  the  daughter.^ 

§  1545.  Vested  Remainder  to  Class  some  of  whose  Members 
not  in  esse.  —  There  is,  however,  a  class  of  cases  where  a  re- 
mainder is  regarded  as  vested,  although  all  the  persons  who 
may  take  are  not  ascertained  or  in  esse,  and  cannot  be  until 
the  happening  of  some  future  event.  And  that  is  where  there 
is  a  devise  of  a  remainder  to  a  class  of  which  each  member  is 
equally  the  object  of  the  testator's  bounty,  as  to  "  the  chil- 
dren" of  a  person,  some  of  whom  are  living  at  the  testator's 
death.  As,  for  instance,  upon  a  devise  to  A  for  life,  remainder 
to  the  children  of  J.  S.,  if  J.  S.  has  children  at  the  testator's 
death  they  would  take  a  vested  remainder ;  and  if  he  were  to 
have  other  children  during  the  life  of  A,  and  before  the  remain- 
der was  to  take  effect  in  possessioti,  it  would  open  and  let  in  the 
children  born  during  A's  life,  who  would  take  shares  as  vested 
remainders.^  And  a  like  rule  was  applied  in  a  case  where  a 
conveyance  was  made  to  a  mother  and  her  children  and  their 
heirs.     It  was  held  to  let  in  after-born  children,  on  the  ground 

1  Doe  d.  Morris  v.  TJndenlown,  "Willes,  293  ;  Young  v.  Stoner,  37  Penn.  St. 
105  ;  Danforth  v.  Talbot,  7  B.  Mon.  623 ;  Wright  v.  White,  136  Mass.  470. 

2  Darling  v.  Blanchard,  109  Mass.  176. 

8  Doe  d.  Long  v.  Prig,  8  Barn.  &  C.  231  ;  Doe  d.  Barnes  v.  Provoost,  4  Johns. 
61  ;  Ee  Brown,  93  N.  Y.  295  ;  Monarque  v.  Monarque,  80  N.  Y.  320  ;  Ballard  v. 
Ballard,  18  Pick.  41  ;  Viner  v.  Francis,  2  Cox,  Ch.  C.  190  and  notes ;  Tud.  Lead. 
Cas.  644,  652  ;  2  Brown,  Ch.  658  ;  Swinton  v.  Legare,  2  M'Cord,  Ch.  440  ;  Myers 
V.  Myers,  2  M'Cord,  Ch.  214,  257;  Jenkins  v.  Freyer,  4  Paige,  47  ;  2  Jarin.  AVills, 
75  ;  Dingley  v.  Dingley,  5  Mass.  535  ;  Wight  v.  Shaw,  5  Cush.  56,  60 ;  Parker  v. 
Converse,  5  Gray,  338,  339  ;  Wright  v.  White,  136  Mass.  470  ;  Gibbeus  v.  Gibbens, 
140  Mass.  102  ;  Yeaton  v.  Roberts,  28  N.  H.  466  ;  Carroll  v.  Hancock,  3  Jones 
(N.  C),  471  ;  Doe  d.  Poor  v.  Considine,  6  Wall.  475  ;  Worcester  v.  Worcester,  101 
Mass.  132,  where  the  time  of  vesting  was  limited  to  a  year;  that  is,  in  such 
children  as  should  be  born  within  a  year  after  testator's  death.  Anthracite 
Savings  Bk.  i'.  Lees,  176  Penn.  St.  402  ;  s.  c.  35  Atl.  Rep.  197  ;  Hinkson  v.  Lees, 
181  Penn.  St.  225  ;  s.  c.  37  Atl.  Rep.  338  ;  Lariverre  v.  Ruins,  112  Mich.  276; 
s.  c.  70  N.  W.  Rep.  583. 


VESTED    REMAINDERS.  519 

that  it  was  a  life-estate  in  the  mother,  with  a  remainder  to 
her  children.  Thouj^h  it  might  well  be  questioned  whether 
the  doctrine  applies  where  there  are  persons  in  esse  to  take, 
and  nothing  in  the  deed  indicates  an  intent  to  make  provision 
for  others  not  in  esse,  or  to  postpone  its  vesting.^  The  above 
distinction  is  illustrated  in  the  case  cited  below,  where  the 
grant  was  to  A  for  life,  and,  at  her  death,  to  her  children, 
where  the  grantor  obviously  referred  to  the  death  of  the  first 
taker  as  the  time  when  the  persons  who  should  take  the 
remainder  should  be  ascertained  ;  and  it  was  accordingly  held, 
that  it  opened  and  let  in  after-born  children.  And  so  imper- 
ative was  this  rule  regarded,  that  when  the  guardian  of  the 
children  then  alive  sold  the  remainder  by  license  of  court,  it 
was  held  not  to  affect  the  title  to  their  shares  in  the  after-born 
children.2 

§  1546.  Alienation  of  Vested  Remainders.  —  One  property  of  a 
vested  remainder  is,  that  it  may  be  aliened  by  any  form  known 
to  the  law  which  does  not  require  a  formal  livery  of  seisin,  or 
passing  the  actual  possession.  But  there  is  the  same  restric- 
tion as  to  conveying  a  freehold  to  commence  in  futuro,  when 
applied  to  remainders,  as  applies  to  other  estates.^  Such 
remainder  may  be  devised,  assigned,  or  limited  over,  and  made 
subject  to  contingencies  and  trusts,  at  the  will  of  him  in  whom 
it  is  vested  ;  *  and  though  only  a  right  of  a  future  enjoyment,  it 
is  an  estate  in  prcesenti.^ 

§  1547.  Defeat  of  Particular  Estate  defeats  Remainder.  —  The 
particular  estate  and  remainder  must,  as  heretofore  defined, 
constitute  a  continuous  ownership  in  succession,  and  be  parts 
of  the  same  inheritance ;  they  must  commence  and  pass  out  of 
the  grantor  by  the  same  act  and  at  the  same  time ;  and  if  for 
any  cause  the  particular  estate  is  void  or  is  defeated  ab  initio, 
as  by  the  entry  of  the  grantor  for  the  breach  of  some  condition, 

1  Coursey  v.  Davis,  46  Penn.  25. 

2  Adams  v.  Ross,  30  N.  J.  513  ;  Graham  v.  Houghtaling,  id.  558. 

8  Watk.  Conv.  182,  and  Coventry's  note  ;  1  Prest.  Est.  75;  Blanchard  v.  Brooks, 
12  Pick.  47,  65.  This  latter  restriction  would  not  apply  where,  as  in  Ohio,  one 
may  by  statute  convey  an  estate  in  freehold  to  commence  in  futuro.  Walk.  Am. 
Law,  286  ;  Pearce  v.  Savage,  45  Me.  101. 

*  Glidden  v.  Blodgett,  38  N.  H.  74. 

6  Jackson  v.  Sublett,  10  B.  Mon.  467. 


520  VESTED    REMAINDERS. 

it  leaves  the  remainder  without  support,  and  this  becomes  a 
mere  estate  to  commence  in  futuro,  which,  if  a  freehold,  fails 
altogether.!  Thus,  an  heir  assigns  to  his  mother,  widow  of  the 
ancestor  from  whom  he  claims  by  descent,  a  part  of  the  estate 
as  dower,  and  at  the  same  time  grants  the  dower-land  from 
and  after  her  death  to  A  B.  This  limitation  would  be  void  as  a 
remainder,  since  the  widow  does  not  take  her  title  derivatively 
through  the  heir  and  as  a  part  of  his  estate,  but  under  and  by  a 
title  independent  of  his  ;  so  that,  instead  of  the  grant  to  A  B 
being  a  remainder,  it  is  simply  a  grant  of  a  freehold,  to  com- 
mence when  the  widow's  estate  shall  determine  at  her  death.^ 
For  this  reason,  the  particular  estate  that  supports  the  remain- 
der must  be  something  more  than  an  estate  or  tenancy  at  will, 
for  such  an  interest  is  not  deemed  to  be  a  part  of  the  inherit- 
ance.^ One  reason  why,  where  there  is  a  freehold  in  remainder 
depending  u{)on  a  particular  estate  for  years,  the  livery  of  seisin 
must  be  made  to  such  termor  for  years,  is  that  it  may  pass 
from  the  grantor,  and  the  remainder-man  need  not  be  obliged, 
in  order  to  avail  himself  of  his  estate  in  the  premises,  to 
interfere  with  the  immediate  possession  of  the  same,  which  is 
exclusively  in  the  termor.*  The  remainder-man  must  accord- 
ingly wait  until  the  particular  estate  has  regularly  determined, 
and  can  do  nothing  to  abridge  it ;  and  if,  before  that  time  it  is 
defeated  altogether,  as  by  an  entry  by  the  grantor  for  condi- 
tion broken  before  the  remainder-man  comes  into  possession, 
the  estate  of  the  latter  fails  altogether.^  But  where  there  was 
a  devise  to  A  for  life,  remainder  to  B,  and  A  declined  to  ac- 
cept the  devise,  it  was  held  that  B  took  the  estate  on  the  death 
of  the  testator  without  waiting  for  the  death  of  A.^  But 
where  one  gave  an  estate  to  his  wife  for  life,  with  a  provision 
that  if  she  marrifed  she  should  foi'feit  certain  parts  of  it,  with 
remainder   to   such    of    the    testator's    brother's    children    as 

1  Colthirst  !'.  Bpjushin,  Plowd.  25  ;  2  Flint.  Real  Prop.  260  ;  2  Bl.  Cora.  166. 

2  Colthirst  V.  Bejushin,  Plowd.  2.5  ;  Park,  Dower,  §  341 ;  ante,  §  486. 
8  2  Flint.  Real  Prop.  259  ;  2  Bl.  Com.  166  ;  ante,  §  767. 

*  Lit.  §  60  ;  Co.  Lit.  49  a ;  2  Flint.  Real  Prop.  262. 

6  2  Flint.  Real  Prop.  263.  This  proposition  applies  to  the  common  law.  How 
it  may  be  done  by  executory  devises,  or  springing  and  shifting  uses,  will  be  shown 
hereafter. 

6  Yeaton  v.  Roberts,  18  N.  H.  459. 


VESTED   REMAINDERS.  521 

should  be  alive  at  her  death,  and  she  did  marry,  it  was  held 
that  the  part  thus  forfeited  and  lost  by  her  went  to  testator's 
heirs  at  law,  to  hold  until  her  decease ;  as,  by  the  express 
terms  of  his  will,  that  was  the  time  at  which  the  devise  as  to 
the  remainder  was  to  take  effect.^ 

§  1548.  Exceptions  to  Foregoing  Rule.  — There  are  one  or  two 
exceptions  to  the  rule,  that,  if  the  original  seisin  of  the  par- 
ticular estate  on  which  the  remainder  depends  be  defeated  and 
avoided,  the  remainder  itself  will  Aiil,  which  apply  as  well  to 
vested  as  to  contingent  remainders,  and  may  be  properly 
noticed  liere.  Thus,  for  instance,  if  a  lessor  were  to  make  a 
lease  for  life,  and  then  disseise  his  own  lessee,  and  make  a 
second  lease  to  another  during  the  life  of  his  first  lessee,  with 
a  remainder  over  to  a  third  person  in  fee,  though  the  first 
lessee,  by  an  entry,  would  defeat  the  seisin  of  the  second  lessee, 
yet  the  lessor  would  not  be  at  liberty  so  far  to  take  advantage 
of  his  own  wrong  as  to  avail  himself  of  this  circumstance  in 
defeating  the  remainder  in  fee  which  he  had  himself  created, 
though  the  livery  which  sustained  it  was  a  wrongful  one  as 
against  his  first  lessee.  So  if  the  particular  estate  be  to  A,  an 
infant,  for  life,  remainder  to  B  in  fee,  and  A,  when  he  comes 
of  age,  disaffirms  the  estate  in  himself,  it  will  not  defeat  the 
remainder  which  had  become  once  vested  by  a  good  title.^ 

§  1549.  No  Tenure  between  Remainder  and  Particular  Estate.  — 
There  is  no  relation  of  tenure  between  a  remainder-man  and 
the  tenant  of  the  particular  estate,  since  they  both  derive  their 
interests  or  estates  from  the  same  source,  and  not  one  from  the 
other.^  A  remainder-man  may,  therefore,  have  a  separate  ac- 
tion against  a  stranger  for  an  injury  to  the  inheritance  ;  and 
for  the  injury  to  the  immediate  enjoyment  of  the  estate,  the 
tenant  for  life  may  have  his  own  appropriate  action.*  Nor  is 
the  possession  of  the  tenant  for  life  adverse  to  the  remainder- 
man, so  as  to  affect  the  right  of  the  latter  to  make  a  valid  con- 
veyance.^ 

§  1550.  Remainders  must  be  limited  in  a  Prescribed  Order. — 
In  order  that  successive  estates  in  the  same  land  should  con- 

1  Augustus  i;.  Seabolt,  3  Met.  (Ky.)  161. 

2  Co.  Lit.  298  a.  3  Wms.  Real  Prop.  205. 
*  Van  Deusen  v.  Young,  29  N.  Y.  9. 

6  Grout  V.  Townseud,  2  Hill,  554. 


522  VESTED    REMAINDERS. 

stitute  remainders  in  respect  to  eacli  other,  they  must  be  so 
limited  as  to  come  into  possession  successively  one  after  the 
other  in  some  prescribed  order,  the  owner  of  the  one  waiting 
to  enter  until  the  estate  of  the  other  shall  have  been  deter- 
mined.^ But  it  is  unimportant  what  this  order  is,  provided 
that  a  fee  other  than  a  fee-tail  does  not  precede  another  of  the 
estates  limited.  Thus  the  limitation  may  be  to  A  in  tail,  re- 
mainder to  B  for  life,  and  to  C  for  years,  with  a  remainder  to 
D  in  fee.  If  by  death  or  forfeiture  any  previous  estate  fails, 
the  one  to  whom  the  next  in  order  is  limited  will  at  once  come 
in,  and  have  a  right  to  immediate  possession.  So  that,  no 
matter  how  numerous  these  limitations  may  be,  as  each  is  ready 
thus  to  come  into  possession  at  any  moment,  they  are  all  re- 
garded as  having  a  vested  remainder,^  because,  in  the  case  sup- 
posed, the  successive  limitations  are  to  persons  in  esse  ;  and 
the  same  rule  as  to  the  order  of  succession  would  apply,  though 
the  remainders  were  what  is  called  contingent. 

§  1551.  Of  Contingent  Remainders  becoming  vested.  —  What- 
ever may  be  the  distinction  between  vested  and  contingent 
remainders,  so  long  as  they  remain  such,  the  moment  the  con- 
tingency happens  on  which  a  remainder  depends  it  becomes  a 
vested  one,  with  the  qualities  and  incidents  of  such  a  remain- 
der. Thus,  upon  the  grant  of  an  estate  to  A,  with  a  remainder 
to  his  children,  he  having  none  at  the  time,  the  remainder  will, 
of  course,  be  a  contingent  one  ;  but  the  moment  he  has  a  child 
born,  the  remainder  becomes  vested  as  fully  as  if  it  had  origi- 
nally been  limited  to  a  living  child.^  But  if  there  be  an  interval, 
however  brief,  between  the  determination  of  the  particular 
estate  and  the  vesting  of  the  remainder,  the  latter  is  forever 
defeated  and  gone,  and  the  entire  estate  reverts  at  once  to  the 
donor  or  grantor  who  created  it.* 

1  Wms.  Real  Prop.  206. 

2  "Wms.  Real  Prop.  207. 

3  Doe  d.  Comerbach  v.  Perryn,  3  T.  R.  484;  Wendell  v.  Crandall,  1  N.  Y. 
491. 

*  1  Prest.  Est.  217  ;  Wms.  Real  Pro)).  226. 


CROSS-REMAINDERS.  523 


CHAPTER  LXV. 

CROSS-REMAINDERS. 

§  1552.     Definition. 

1553.  Object  of  cross-remainders. 

1554.  How  created. 

§  1552.  Definition.  — There  is  a  class  of  remainders  known 
to  the  law  as  Cross-remainders,  to  each  of  which  the  same 
rules  apply  as  if  they  were  independent  of  each  other,  al- 
though there  may  be  a  common  ownership  of  the  two  or  more 
estates  out  of  which  they  are  created.  Cross-remainders  arise 
where  lands  are  given  in  undivided  shares  to  two  or  more  per- 
sons by  the  way  of  particular  estates,  by  such  limitations,  that, 
upon  the  determination  of  the  estate  of  the  first  taker  in  any 
one  of  the  shares,  it  remains  over  to  the  other  grantees  or 
donees  named,  and  the  reversioner  or  ulterior  remainder-man 
is  not  let  into  possession  till  the  determination  of  all  the  par- 
ticular estates.^  But,  though  usual,  it  is  not  necessary,  in 
order  to  create  cross-remainders,  that  the  estates  should  origi- 
nally have  been  granted  to  the  several  persons  in  common. 
The  term  seems  equally  applicable  to  two  distinct  estates, 
where  one  is  granted  to  A  and  the  other  to  B,  with  remainder 
over  of  A's  estate  to  B  on  failure  of  issue  of  A,  and  of  B's 
estate  to  A  on  a  like  failure  of  issue.^ 

§  1553.  Object  of  Cross-remainders.  —  The  obvious  design 
and  intention  of  such  a  limitation  is,  that  upon  the  share  of 
one  of  the  takers  failing  for  want  of  issue,  instead  of  its  re- 
verting to  the  original  owner,  or  going  at  once  to  the  final 
remainder-man,  it  shall  go  to  the  tenant  or  tenants  of 
the  other  parts  of  the  estate,  who  will  hold  it  in  connection 

1  Co.  Lit.  195  b,  Butler's  n.  1  ;  4  Cruise,  Dig.  298  ;  2  Cnihh,  Real  Prop.  972; 
1  Wms.  Saund.  185,  note  ;  1  Prest.  Est.  94  ;  Walk.  Couv.  189,  Coventry's  note. 

2  1  Prest.  Est.  94 ;  4  Kent,  Com.  201. 


524  CROSS-REMAINDERS. 

with  the  parts  already  in  their  possession  as  they  before  had 
holden  their  own  parts.  And  as  this  is  a  reciprocal  right, 
operating  crosswise,  and  only  depending  upon  whose  part  first 
fails  by  a  failure  of  issue,  the  right  to  take  such  part  upon  such 
a  failure  is  regarded  as  a  remainder,  and  is  treated  accordingly. 
§  1554:.  How  created.  —  Such  remainders  may  be  limited  by 
deed  or  by  will,  and  may  exist  between  two  or  a  greater  num- 
ber of  persons.  They  may  be  raised  by  express  terms,  or  in  a 
will  by  implication.  But  a  cross-remainder  is  never  raised  by 
deed  without  express  terms,  and  proper  words  of  limitation.^ 
In  limiting  such  interest  by  the  way  of  cross-remainders,  the 
limitation  should  be  so  expressed  as  to  pass  not  only  the  origi- 
nal share  of  the  party,  but  whatever  share  or  shares  shall 
accrue  to  him  or  his  issue  upon  the  decease  and  failure  of  issue 
of  the  others  naraed.^  Therefore,  where  a  devise  was  to  sev- 
eral in  fee,  in  common,  with  a  devise  over  in  case  all  should 
die  under  age,  and  one  of  them  died  in  infancy,  it  was  held  that 
his  share  went  to  his  heir,  subject  only  to  be  defeated  if  and 
when  all  these  devisees  should  die  under  age.^  The  test  in  all 
these  cases  of  the  existence  of  a  cross-remainder  is,  whether,  if 
by  deed  there  is  an  express  limitation,  or  if  by  will  an  express 
or  implied  one,  that  the  whole  of  the  estate  shall  go  over,  to- 
gether, in  entirety  to  its  final  limitation,  upon  the  failure  of 
issue,  or  in  parts  as  the  issue  of  one  or  another  of  the  first 
takers  shall  fail.* 

1  Watson  V.  Foxon,  2  East,  36  ;  AVatk.  Con  v.  9,  Coventry's  note  ;  Co.  Lit.  195, 
note  82  ;  Cook  v.  Garrard,  1  Wms.  Saund.  186,  n. ;  Doe  d.  Foquett  v.  Worsley, 
1  East,  416.  It  has  been  questioned  whether  there  can  be  cross-remainders  to 
more  than  two.  The  subject  is  discussed  bj'  Dodridge,  J.,  in  Gilbert  v.  Witty, 
Cro.  Jac.  656,  against  the  position.  See  also  Twisden  v.  Lock,  Anib.  665  ;  Wright 
V.  Holford,  Cowp.  31 ;  Phipard  v.  Mansfield,  id.  799.  Whether  they  may  be 
created  by  deed,  see  Cole  v.  Leviugston,  1  Vent.  224.  And  see  Hall  v.  Priest,  6  Gray, 
18,  where  cross-remainders  were  sustained  between  eight  persons. 

2  Co.  Lit.  195  b,  note  82. 

3  Fenby  y.  Johnson,  21  Md.  117  ;  2  Jarra.  Wills,  482. 
*  Doe  d.  Gorges  v.  Webb,  1  Taunt.  234. 


CONTINGENT   REMAINDERS.  525 


CHAPTER  LXYI. 

CONTINGENT   REMAINDERS, 

§  1555.  Definition. 

1556.  Illustrations. 

1557.  Contingent  remainders  alienable. 

1558.  Classification. 

1559.  First  class. 

1560.  Second  class. 

1561.  Third  class. 

1562.  Fourth  class. 

1563.  Exceptions  to  the  third  class. 

1564.  Remainders  of  terms  for  years. 

1565.  Exceptions  to  the  fourth  class. 

1566.  Vested  remainder  after  contingent. 

1567.  Case  of  Napper  v.  Sanders. 

1568.  Case  of  Lethieullier  v.  Tracy. 

1569.  Of  remainders  affected  by  contingency  of  prior  remainders. 

1570.  First  class  of  successive  remainders. 

1571.  Second  class  of  successive  remainders. 

1572.  Illustration. 

1573.  Third  class  of  successive  remainders. 

1574.  Devisor's  intention  affects  such  limitations. 

1575.  Fee  with  a  double  aspect. 

1576.  Same  .subject  — After  limitation  necessarily  contingent. 

1577.  Valid  remainders  after  trust  estates  in  fee. 

1578.  Effect  upon  remainders  of  powers  of  appointment. 

1579.  Future  devise,  whether  vested  or  contingent. 

1580.  Vested  remainders  upon  condition  subsequent. 

§  1555.  Definition. — A  contingent  remainder  is  one  whose 
vesting  or  taking  effect  in  interest  is,  by  the  terms  of  its  crea- 
tion, made  to  depend  upon  some  contingency  which  may  never 
happen  at  all,  or  may  not  happen  within  a  requisite  prescribed 
time,  by  reason  whereof  its  capacity  of  vesting  or  taking  effect 
in  interest  may  be  forever  defeated.^  Or,  in  the  language  of  an- 
other, it  is  one  "  which  is  limited  to  a  person  who  is  not  ascer- 
tained at  the  time  of  the  limitation,  or  which  is  referred  for 
its  vesting  or  taking  effect  in  interest  to  an  event  which  may 

1  1  Prest.  Est.  74  ;  2  Bl.  Com.  169. 


526  CONTINGENT    REMAINDERS. 

not  happen  till  after  the  determhiation  of  the  particular 
estate,"  ^  or  upon  the  happening  of  some  uncertain  and  doubt- 
ful event,  or  where  the  person  to  whom  it  is  limited  is  not 
ascertained  or  yet  in  being.  Until  the  contingency  has  hap- 
pened, the  remainder  is  rather  a  possildlity  in  its  character 
than  an  estate  ;  although  it  has  become  a  familiar  quality  of 
an  estate,  to  understand  and  apply  which  involves  much  nice 
learning.2  \^  jg  always  an  executory  interest  from  its  very 
nature,^ 

§  1556.  Illustrations.  —  Suppose  an  estate  be  limited  to  A 
for  life,  remainder  to  the  oldest  son  of  B,  who  then  has  no  son. 
The  contingency  in  that  case  is  that  of  a  son  being  born  to  B. 
If  he  has  a  son,  the  moment  he  is  born  the  remainder  becomes 
vested  in  him,  and  ceases  to  be  contingent.  If  the  uncertain 
event  fails  to  happen  at  all,  the  remainder  fails  from  the  want 
of  a  person  to  take  it  when  the  particular  estate  determines, 
and  the  estate  reverts  at  once  to  the  grantor.*  So  where  there 
was  a  devise  to  a  wife  for  life,  and  at  her  death  to  be  divided 
to  and  among  such  of  testator's  children  as  should  then  be 
living,  share  and  share  alike,  it  was  held  a  contingent  remain- 
der ;  if  one  of  these  died  in  her  lifetime,  his  share  was  lost, 
although  he  left  a  child.  The  latter  took  nothing.^  Another 
instance  would  be  that  of  an  estate  to  A  for  life  ;  and  if  B  out- 
live him,  then  to  B  in  fee.  There  is  here  no  contingency  about 
the  person  who  is  to  take,  but  the  contingency  is  in  the  event 
of  his  outliving  A ;  for  if  he  die  before  A,  though  all  along 
ready  to  take  the  remainder  if  it  falls  in,  the  remainder  as  such 
goes  to  no  one.  If  A  die  first,  the  remainder  not  only  becomes 
vested  in  interest  but  at  once  in  possession.^  Another  and  famil- 
iar illustration  would  be  where  this  estate  was  limited  to  A  for 

1  1  Law  Mag.  120  ;  Brown  v.  Lawrence,  3  Gush.  390,  397  ;  Fearne,  Cont.  Rem.  2. 
The  New  York  statute  defines  remainders  as  contingent,  "  whilst  the  person  to 
whom  or  the  event  upon  which  they  are  limited  to  take  effect  remains  uncertain." 
Rev.  Stat.  1827,  tit.  2,  art.  1,  §  13  ;  Lalor,  Real  Prop.  QQ. 

2  1  Prest.  Est.  75. 

8  1  Prest.  Est.  63  ;  2  Fearne,  Cont.  Rem.  Smith's  ed.  §  90. 

*  2  Bl.  Com.  169-171. 

8  Thompson  v.  Ludington,  104  Mass.  193.  See  also  Olney  v.  Hull,  21  Pick. 
311  ;  Denny  v.  Kettell,  135  Mass.  138  ;  Colby  v.  Duncan,  139  Mass.  398  ;  Smith  v. 
Rice,  130  Mass.  441. 

«  2B1.  Com.  169-171. 


CONTINGENT    REMAINDERS,  *  527 

life,  remainder  to  B  after  the  death  of  A  and  11.  Here  B  is  a 
known  person  in  esse,  ready  at  all  times  to  take  the  remainder. 
It  is  certain  that  A  will  die,  and  that  H  will  also.  The  con- 
tingency is  in  the  doubt  whether  H  will  die  before  A.  If  he 
does,  the  grant  is  thereupon  converted  into  a  simple  limitation 
of  an  estate  to  A  for  life,  with  a  remainder  to  B,  and  is  a  vested 
one.  But  if  A  dies  first,  B's  remainder  is  wholly  gone,  be- 
cause he  can  only  take  it  when  A  and  H  are  both  dead ;  and  by 
the  death  of  A  before  H,  the  particular  estate  in  A  determines 
before  B  can  take,  and  consequently  his  remainder  fails,  and 
the  estate  reverts  to  the  grantor.^  And  to  these  may  be  added, 
for  further  illustration,  a  conveyance  in  trust  for  the  grantor 
for  life,  and  after  his  death  to  A,  when  and  provided  he  attain 
the  age  of  twenty-one  years.  The  interest  of  A  was  held  to 
be  a  contingent  remainder  until  he  arrived  at  that  age.^ 

§  1557.  Contingent  Remainders  alienable. — For  a  long  time 
a  contingent  remainder  was  not  supposed  to  be  the  subject  of 
alienation,  because  it  was  rather  a  possibility  than  an  estate, 
like  the  possibility  of  an  heir  at  law,  for  instance,  having  the 
estate  when  his  ancestor  shall  have  died.^  But  it  is  now  settled, 
that  where  the  contingency  upon  which  the  remainder  is  to  vest 
is  not  in  respect  to  the  person,  but  the  event,  where  the  i)erson 
is  ascertained  who  is  to  take  if  the  event  happens,  the  remain- 
der may  be  granted  or  devised,  and  the  grantee  or  devisee  will 
come  into  the  place  of  the  grantor  or  devisor  with  his  chance 
of  having  the  estate.'*  But  if  the  contingency  is  in  the  person 
who  is  to  take,  as  where  the  remainder  is  limited  to  the  heirs 

1  2  Bl.  Com.  169-171. 

2  McGowan  v.  Way,  1  Met.  (Ky.)  418. 

3  Wnis.  Real  Prop.  232. 

*  Putnam  v.  Story,  132  Mass.  205  ;  Whipple  v.  Fairchild,  139  Mass.  263  ;  Hen- 
nessy  v.  Patterson,  85  N.  Y.  91 ;  Kenyon  v.  See,  94  N.  Y.  563.  And  such  an  interest 
will  pass  to  the  assignee  in  bankruptcy  or  insolvency.  Belcher  v.  Burnett,  126 
Mass.  230  ;  Minot  v.  Tappan,  122  Mass.  535  ;  Merriara  v.  Simonds,  121  Mass.  198, 
202  ;  Duun  v.  Sargent,  101  Mass.  336.  And  a  court  of  equity  will  apply  such  in- 
terest to  the  payment  of  the  owner's  debts  by  selling  it.  Daniels  i".  Eldredge, 
125  Mass.  356.  Even  in  those  States  where  the  old  common  law  rule  prevails,  a 
deed  of  a  contingent  remainder,  if  made  for  au  adequate  consideration,  will  be  sup- 
ported in  equity  as  an  executory  contract  for  a  deed  when  the  estate  becomes 
vested,  and  such  an  interest  in  the  contract  may  be  devised  by  the  person  who 
owns  it,  or  will  descend  to  his  heirs.  Bailey  v.  Hoppin,  12  R.  I.  560.  For  the 
statutes  on  this  point,  see  j^osi,  note  at  the  end  of  chapter  Ixviii. 


528  CONTINGENT   REMAINDERS. 

of  one  now  alive,  there  is  no  one  who  can  make  an  effectual 
Grant  or  devise  of  tlie  remainder.^  And  where  one  settled  on 
herself  an  estate  for  life,  with  a  remainder  to  her  children  if 
she  had  any,  and  if  she  had  none,  then  to  her  heirs  at  law,  it 
was  held  that  she  had  a  devisable  interest  in  the  estate,  and 
that  her  devisees,  at  her  death  without  children,  took  in  pref- 
erence to  her  heirs,  the  word  "  heirs"  being  here  a  word  lim- 
iting the  reversionary  interest  in  her.^  At  common  law, 
before  the  contingency  happened,  contingent  remainders  could 
not  be  conveyed  except  by  way  of  estoppel,  though  they  were 
assignable  in  equity,  since  theoretically  such  a  remainder  was 
not  an  estate,  but  a  mere  chance  of  having  one.^  Under  the 
present  statutes,  however,  if  the  person  who  is  to  take  the  re- 
mainder is  ascertained,  he  has  what  is  called  a  vested  interest 
in  a  contingent  remainder  which  he  may  aliene  by  dced>  Where 
the  person  is  ascertained  who  is  to  take  the  remainder,  if  it 
becomes  vested,  and  he  dies,  it  will  pass  to  his  heirs,^  or  may 
be  devised  by  him.^  It  might  always  have  been  released  by 
him  to  the  reversioner,  and  now  by  statute  he  may  convey  it 
by  deed."  And  where  a  deed  of  such  contingent  remainder 
operates  by  way  of  estoppel,  it  operates  upon  the  estate  itself 

1  "Wms.  Real  Prop.  231  ;' 1  Prest.  Est.  76;  Putnam  v.  Story,  132  Mass.  205; 
Whipple?;.  Fairchild,  139  Mass.  263;  post,  §  1915.  The  word  "heirs"  is  .some- 
times plainly  used,  meaning  "children,"  and  will  then  be  so  construed.  Haver- 
stick's  App.,  103  Penn.  St.  394  ;  Warn  v.  Brown,  102  id.  347;  Hinton  v.  Milburn, 
23  W.  Va.  166.  When  so  used,  a  limitation  to  the  heirs  of  one  now  living  would 
be  equal  to  a  limitation  to  the  children,  and  would  be  a  vested  remainder.  Ibid. 
In  two  cases  in  Massachusetts  it  has  been  held  that  the  word  "heirs"  of  a  living 
person  may  mean  "  heirs  presumptive,"  and  if  there  are  children,  they  are  the 
heirs  presumptive,  and  consequently  the  interest  in  the  remainder  vests  in  them 
and  is  alienable,  though,  as  they  may  die  before  the  death  of  their  ancestor,  the 
remainder  would  be  contingent.  Putnam  v.  Story,  132  Mass.  205  ;  Whipple  v. 
Fairchild,  139  Mass.  263. 

2  Loring  v.  Eliot,  16  Gray,  574. 

8  Wms.  Real  Prop.  231,  233  ;  2  Cruise,  Dig.  333  ;  Fearne,  Cont.  Rem.  551  ; 
1  Prest.  Est.  76,  89  ;  Robertson  t-.  Wilson,  38  N.  H.  48. 

4  Putnam  v.  Story,  132  Mass.  205,  211  ;  Whipple?;.  Fairchild,  139  Mass.  263. 

6  Roe  d..  Noden  v.  Griffiths,  1  W.  Bl.  606  ;  1  Prest.  Est.  76 ;  Buck  i-.  Lantz,  49 
Md.  439  ;  4  Kent,  Com.  262.     Contra,  De  Lassus  v.  Greenwood,  71  Mo.  371. 

6  Roe  d.  Perry  v.  Jones,  1  H.  Bl.  33  ;  4  Kent,  Com.  261 ;  Roe  d.  Noden  v. 
Griffiths,  1  W.  Bl.  606;  Hennessy  v.  Patterson,  85  N.  Y.  91  ;  Kenyon  v.  See,  94 
N.  Y.  563. 

■?  Wms.  Real  Prop.  231  ;  1  Prest.  Est.  89 ;  Stat.  8  &  9  Vict.  c.  106,  §  6  ;  a7ite, 
§  1557 ;  post,  note  at  the  end  of  chapter  Ixviii. 


CONTINGENT   REMAINDERS.  529 

whenever  the  remainder  becomes  vested,  and  the  estoppel  be- 
comes an  estate  in  interest.  So  all  persons  claiming  by, 
through,  or  under  the  maker  of  such  deed  would  be  equally 
estopped  with  himself.^ 

§  1558.  Classification.  —  Mr.  Fearne,  and  after  him  Mr. 
Cruise,  divides  contingent  remainders  into  four  classes.^ 
And  though  Mr.  Cornish  and  Chancellor  Kent  disapprove  of 
this  classification,^  as  it  is  at  least  a  harmless  one  which  it 
may  be  convenient  to  follow,  though  not  strictly  logical  or 
scientific,  it  will  be  generally  retained  here. 

§  1559.  The  First  Class  embraces  cases  where  the  particular 
estate,  though  less  than  a  fee,  and  indefinite  in  its  duration,  is 
subject  to  be  determined  by  the  happening  of  some  contingent 
event,  and  the  remainder  is  made  to  depend  upon  the  happen- 
ing of  this  event.  Thus  if  a  feoffment  is  made  to  the  use  of  A 
until  B  returns  from  Rome,  and  upon  his  return  then  over  to 
C,  the  remainder  to  C  is  contingent,  because  the  event  upon 
which  it  depends  may  never  happen.  B  may  die  in  Rome,  or 
A  may  die  before  B  returns  ;  and  in  either  event,  the  estate  to 
C  is  defeated  ;  in  the  one,  because  the  event  never  has  hap- 
pened, and  never  can  ;  in  the  other,  because  the  particular 
estate  in  A  will  have  determined  before  the  remainder  to  C, 
dependent  upon  it,  can  have  become  vested.  This  would,  of 
course,  exclude  those  cases  where  the  remainder  is  limited 
upon  a  particular  estate  definite  in  its  duration,  as  an  estate 
for  life  which  is  sure  to  determine,  and  upon  the  determination 
of  which  the  remainder  is  to  take  effect.  It  would  exclude  also 
cases  of  conditional  limitation  as  heretofore  defined,  where  the 
remainder,  though  contingent,  instead  of  waiting  for  the  regu- 
lar determination  of  the  particular  estate,  takes  effect  upon  the 
happening  of  an  event  which  curtails  or  defeats  the  particular 
estate  before  its  natural  determination,  as  would  have  been  the 
case  had  the  limitation  in  this  case  been  expressly  for  life  to  A  ; 
but  if  B  return  from  Rome,  then  over  to  C.     The  return  of  B 

1  4  Kent,  Com.  {8th  ed.)  263,  n. ;  Doe  d.  Christmas  v.  Oliver,  10  Barn.  &  C.  181  ; 
Fearne,  Cont.  Rem.  365,  §  5,  and  note;  Stow  v.  Wyse,  7  Conn.  214. 

2  Fearne,  Cont.  Rem.  5  ;  Boraston's  case,  3  Keji.  19. 

^  4  Kent,  Com.  (8th  ed.)  208,  n.  Blackstone  divides  them  into  two  classes  only  : 
1st,  where  the  person  to  take  is  dubious  and  uncertain  ;  2d,  where  the  event  is 
vague  and  uncertain.     2  Bl.  Com.  169. 
VOL.  II.  —  34 


530  CONTINGENT    REMAINDERS. 

would  still  be  contingent,  and  the  remainder  to  C  would  still 
take  effect,  but  it  would  be  at  the  expense  or  to  the  destruction 
of  the  balance  of  A's  life-estate. ^  And  the  same  would  be  true 
of  a  grant  to  A  and  his  heirs  till  B  comes  back  from  Rome, 
and  then  to  C,  who  would  take,  if  at  all,  a  conditional  limita- 
tion, and  not  a  remainder,  because  the  estate  in  A  is  a  deter- 
minable fee  which  must  be  defeated  by  B's  return,  or  C  cannot 
take  at  all.^ 

§  1560.  The  Second  Class  embraces  cases  where,  though  the 
particular  estate  is  limited  so  as  to  determine  with  certainty, 
and  it  is  unimportant  where  or  how  this  is  to  happen,  the  re- 
mainder is  made  to  depend  upon  the  contingency  whether  a 
certain  collateral  event  shall  happen  or  not  before  the  partic- 
ular estate  shall  have  determined.  Thus,  where  an  estate  is 
limited  to  A  for  life,  remainder  to  B  for  life,  and  if  B  die  before 
A,  remainder  to  C  for  life,  A  is  sure  to  die,  and  his  life-estate 
to  determine.  But  whether  C  shall  have  the  remainder  at  his 
death,  depends  upon  the  collateral  contingent  event  whether 
B  shall  have  died  before  A  or  not.  If  B  outlives  A,  he  takes 
the  remainder,  and  C  takes  nothing.  If  B  dies  first,  C's  re- 
mainder becomes  at  once  vested,  and  he  comes  in  at  A's  death, 
as  if  there  had  been  no  limitation  to  B.^ 

§  1561.  The  Third  Class  includes  those  cases  where  the  con- 
tingency on  which  the  remainder  depends  is,  whether  an  event 
which  is  sure  to  happen  shall  happen  or  not  before  the  expira- 
tion of  the  particular  estate  which  supports  it ;  for  if  it  should 
not  happen  until  after  the  determination  of  the  particular  es- 
tate, by  the  common  law  the  remainder  dependent  upon  it 
would  fail,  as  there  would  be  nothing  to  sustain  the  seisin  in 
the  mean  time  between  the  determination  of  the  particular 
estate  and  the  time  when  the  remainder  might  otherwise  have 
vested.  An  example  of  this  class  would  be  a  gi-ant  to  A  for 
life,  remainder  after  the  death  of  J.  S.  to  J.  D.  for  life.  Now, 
it  is  certain  that  A  will  die,  and  that  J.  S.  and  J.  D.  will  die ; 
but  whether  J.  S.  sliall  die  or  not  before  J.  D.  is  wholly  uncer- 
tain, and  the  remainder  to  J.  D.  is  contingent.     Of  the  same 

1  Fearne,  Cont.  Rem.  5,  10,  and  Butler's  notes  ;  2  Cruise,  Dig.  204. 

2  Fearne,  Butler's  ed.  13,  note  ;  Smith,  Executory  Interest,  57,  §  166. 

8  Fearne,  Cont.  Rem.  8,  and  Butler's  note ;  2  Cruise,  Dig.  204  ;  Co.  Lit.  378  a. 


CONTINGENT   REMAINDERS.  531 

character  would  be  a  limitation  to  the  use  of  A  for  twenty-one 
years,  if  he  shall  so  long-  live,  and  after  his  death  to  B  in  fee. 
Here,  as  A  may  survive  twenty-one  years,  the  remainder  de- 
pendent upon  it  is  contingent,  and  being  such  is  void,  as  it  has 
no  particular  estate  of  freehold  to  sustain  it.^ 

§  1562.  The  Fourth  Class  of  contingent  remainders  is,  where 
tlie  contingency  depends  upon  the  uncertainty  of  the  person 
who  is  to  take  the  remainder,  because  he  is  either  not  in  being, 
or  not  ascertained  at  the  time  the  limitation  is  made.  An  ex- 
ample of  this  kind  would  be  that  of  an  estate  limited  to  one  for 
life,  remainder  to  the  oldest  son  of  J.  S.,  who  has  none  at  the 
time  of  the  limitation  made,  or  remainder  to  the  heirs  of  J.  S., 
who  is  living  at  the  time.  So  a  grant  to  A  and  B  for  life,  re- 
mainder to  the  survivor,  would  be  of  this  class.  In  all  these 
cases,  there  is  no  means  of  knowing,  when  the  limitation  is 
made,  who,  if  any  one,  will  be  entitled  to  the  remainder  when 
the  particular  estate  shall  determine.^  Thus,  upon  a  devise  to 
a  daughter  and  her  husband  for  their  respective  lives,  remain- 
der to  the  heirs  of  the  daughter,  it  was  held  that  the  devise 
over  to  the  heirs  of  the  daughter  was  contingent  until  her 
death,  at  which  time  it  vested  in  whoever  were  her  heirs,.^ 
And  in  another  case,  where  the  devise  was  to  a  husband  and 
wife  during  life,  and  then  to  the  use  of  such  child  or  children 
as  might  be  procreated  between  them,  until  a  child  was  born 
the  remainder  was  contingent.  Upon  the  birth  of  a  child  it 
vested  in  him  ;  and  as  other  children  were  born,  the  estate 
opened  and  let  them  in  to  share  in  the  same  as  a  vested 
remainder.* 

§  1563.  Exceptions  to  the  Third  Class.  —  In  applying  these 
rules,  there  are  found  to  be  cases  where  the  decision  seems  at 
first  sight  to  be  at  variance  with  the  letter  of  the  rule,  and  to 
form  an  exception  to  the  same,  while  in  reality  carrying  out 
the  reason  and  spirit  of  the  rule.  Thus  under  the  third  rule, 
one  of  the  cases  given  is  that  of  a  limitation  to  A  for  twenty- 

1  Fearne,  Cont.  Kem.  8  ;  Boraston's  case,  3  Rep.  20. 

2  Fearne,  Cont.  Eem.  9  ;  2  Cruise,  Dig.  206 ;  Loring  v.  Eliot,  IG  Gray,  572  ; 
Harriiiian  v.  Harriman,  59  N.  H.  135. 

3  Richardson  v.  Wheatland,  7  Met.  169  ;  Moore  v.  Weaver,  16  Gray,  307. 

*  Carver  v.  Jackson,  4  Pet.  90.  See  also  Olney  v.  Hull,  21  Pick.  311  ;  Sissou  v. 
Seabury,  1  Sumu.  235  ;  Doe  d.  Poor  v.  Considine,  6  Wall.  477. 


532  CONTINGENT    REMAINDERS. 

one  years  if  he  shall  so  long  live,  with  a  remainder  over  at  his 
death.  The  remainder  in  such  a  case  is  contingent  from  the 
uncertainty  of  A's  dying  during  the  twenty-one  years,  and  is 
moreover  void,  if  a  freehold,  because  the  particular  estate  is  only 
a  term  for  years.  But  if  the  term  had  been  to  A  for  eighty  years, 
for  instance,  if  he  so  long  lived,  with  a  remainder  over  at  his 
death,  the  6hance  of  his  dying  within  that  term  is  so  great  as 
to  be  treated  as  morally  certain  to  happen,  and  therefore  such  a 
limitation  is  regarded  as  an  estate  to  A  for  life,  remainder  to 
another,  who,  if  in  esse,  takes  a  vested  and  not  a  contingent 
remainder.!  The  cases  cited  happened  to  have  been  those 
where  the  time  was  obviously  likely  to  extend  beyond  the  life 
of  the  termor.  But  it  is  apprehended  that  a  much  shorter  time 
would  come  within  the  same  rule,  if  by  the  scale  of  chances  of 
life  the  termor  may  not  be  calculated  to  outlive  the  term.  Thus, 
if,  for  instance,  the  termor  was  an  old  man  when  the  limitation 
was  made,  a  much  shorter  term  than  eighty  years  would  bring 
it  within  the  doctrine  of  Lord  Derby's  case.^ 

§  1564.  Remainders  of  Terms  for  Years.  —  It  may  be  proper 
to  remark  here,  though  somewhat  by  anticipation,  that  there  is 
no  difficulty  in  limiting  a  contingent  remainder  of  a  term  for 
years  upon  a  preceding  term  for  years,  since  in  that  case 
the  seizin  and  freehold  remain  in  the  lessor  unaffected  by 
the  contingency .'"^ 

§  1565.  Exceptions  to  the  Fourth  Class.  —  So  there  are  what 
seem  to  be  exceptions  to  the  fourth  class  of  ccmtingent  re- 
mainders. Prominent  among  them  are  limitations  coming 
within  the  rule  in  Shelley's  case.  This  rule  will  be  more  fully 
explained  hereafter ;  but,  as  showing  how  far  it  forms  the 
exception  above  referred  to,  it  is  proper  to  state,  that  it  is 
accepted  as  one  of  the  dogmas  of  the  common  law,  that  if  one 
makes  a  limitation  to  another  for  life,  with  a  remainder  over 
mediately  or  immediately  to  his  heirs,  or  the  heirs  of  his  body, 
the  heirs  do  not  take  remainders  at  all,  but  the  word  "  heirs  " 

1  Countess  of  Darbie's  case,  cited  in  Littleton's  Rep.  370,  where  the  term  was 
eighty  years.  Weale  v.  Lower,  Pollexf.  67,  where  the  term  was  ninety-nine  years. 
Napper  v.  Sanders,  Hutt.  118,  where  the  term  was  eighty  years.  1  Prest.  Est.  80  ; 
Fearne,  Cont.  Rem.  20-22  ;  2  Cruise,  Dig.  206;  4  Kent,  Com.  221. 

2  Fearne,  Cont.  Rem.  24;  1  Prest.  Est.  81. 

8  Fearne,  Cont.  Rem.  285  ;  2  Cruise,  Dig.  244, 


CONTINGENT   REMAINDERS.  633 

is  regarded  as  defining  or  limiting  the  estate  which  the  first 
taker  has,  and  his  heirs  take  hy  descent,  and  not  by  purchase. 
So  if  a  man  by  his  will  gives  an  estate  to  a  devisee  for  life, 
with  a  remainder  over  to  his  own  heirs,  they  do  not  at  common 
law  take  as  remainder-men  by  the  will,  but  by  descent  as  re- 
versioners and  heirs,  that  being  regarded  as  the  better  title. ^ 
And  now  the  same  effect  would  be  produced  in  England  by  a 
devise  of  a  remainder  to  a  testator's  heirs  under  the  statute  3 
<fe  4  Wm.  IV.  c.  106,  §  3,  except  that  the  remainder  would  be 
a  vested  one,  as  the  heirs  are  ascertained  simultaneously  with 
the  devise  taking  effect.^  Another  seeming  exception  arises  in 
the  case  of  a  limitation  to  one  with  remainder  to  the  "heirs" 
of  another  who  is  still  living,  where  the  context  shows  that  the 
term  is  used  in  a  popular  and  not  a  technical  sense,  meaning 
the  children  of  a  living  person.  In  that  case  the  term  is 
regarded  as  a  descriptio  personce  ;  and  whoever  answers  thereto, 
if  living,  may  take  the  remainder  as  a  vested  one.^ 

§  1566.  Vested  Remainder  after  contingent.  —  [It  has  been  ex- 
plained heretofore,  that  no  contingency  or  uncertainty  of  enjoy- 
ment makes  a  remainder  contingent.^  It  follows]  that  there 
may  be  a  vested  remainder  limited  after  a  contingent  one, 
which  shall  be  good,  provided  the  prior  remainder  be  not  a  fee ; 
so  there  may  be  a  succession  of  contingent  remainders,  where  a 
subsequent  one  may  become  vested  while  the  prior  one  remains 
contingent.  Thus  in  one  case  the  limitation  was  to  A  for  life, 
remainder  to  his  first  and  other  sons  in  tail,  remainder  to  B 
for  life,  remainder  to  his  first  and  other  sons  in  tail.  Now  the 
remainders  were  contingent  because  there  was  no  person  in 
esse  capable  of  taking  them  when  the  limitation  was  made. 
But  if  B  had  a  son,  the  remainder  to  such  son  became  at  once 
vested,  though  no  son  may  yet  have  been  born  to  A,  and  the 
remainder  to  him  was  consequently  still  contingent.^ 

1  See  post,  %  1601. 

2  2  Cruise,  Dig.  209;  Wms  Real  Prop.  225,  and  Rawle's  note;  Fearne,  Cent. 
Rem.  28,  and  Butler's  note  ;  Shelley's  case,  1  Rep.  93 ;  post,  chapter  Ixix. 

3  Fearne,  Cont.  Rem.  209  ;  Bowers  i\  Porter,  4  Pick.  198,  298  ;  Haverstick's 
App.,  103  Penn.  St.  394 ;  Hinton  ;;.  Milburn,  23  W.  Va.  166.  Cf.  Putnam  v.  Story, 
213  Mass.  205;  mite,  §  1556  ;  2  Jarm.  Wills,  10,  and  Perkins's  note. 

*  Ante,  §  1541. 

6  Uvedall  v.  Uvedall,  2  Rolle,  Abr.  119;  Fearne,  Cont.  Rem.  222,  224  ;  2  Cruise, 
Dig.  216  ;  Lewis  v.  Waters,  6  East,  336. 


534  CONTINGENT   REMAINDERS. 

§  1567.  Case  of  N'apper  V.  Sanders.  — In  the  above  cases,  the 
remainders  were  contingent  because  limited  to  persons  not  in 
esse,  and  were  of  the  fourth  class  above  stated.  But  a  case 
may  occur  where  a  vested  remainder  is  preceded  by  a  contin- 
gent one,  and  will  be  good,  though  limited  to  persons  in  esse,  if 
the  prior  limitation  depended  upon  an  event  whose  contingency 
did  not  extend  to  the  subsequent  limitation.  The  leading  case 
illustrative  of  this  is  Napper  v.  Sanders.  There  the  feoffor 
made  a  feoffment  to  her  own  use  for  life,  remainder  to  the  use 
of  feoffees  for  eighty  years,  if  one  N.  S. ,  and  one  E.  S.  his 
wife,  so  long  lived  ;  if  E.  S.  survived  N.  S.,  her  husband,  then 
to  her  for  life;  and  after  her  death,  to  P.  S.  in  tail ;  and,  for 
default  of  issue,  to  E.  N.  and  D.  S.  and  F.  S.  and  the  heirs  of 
their  bodies,  remainder  to  the  heirs  of  the  feoffor.  If  this  case 
is  analyzed  with  reference  to  the  rule  above  stated  as  to  the 
effect  of  a  limitation  for  eighty,  years,  it  will  be  found  to  pre- 
sent this  succession  of  estates :  first,  a  life-estate  in  the  feoffor ; 
next,  a  vested  remainder  to  the  feoffees  for  the  joint  lives  of 
N.  S.  and  E.  S.  because  measured  by  their  lives,  though  nomi- 
nally a  term  of  eighty  years,  with  a  contingent  remainder  for 
life  to  E.  S.  dependent  upon  her  surviving  her  husband  N.  S. 
Then  follows  an  estate-tail  to  P.  S.,  which  is  a  vested  remainder, 
because  he  is  in  esse,  capable  to  take,  and  the  same  is  to  take 
effect  in  him  upon  the  death  of  E.  S.,  without  being  in  any  way 
dependent  upon  the  contingency  of  E,  S.  surviving  her  husband, 
as  her  own  estate  for  life  had  done.  Then  follow  the  ulterior 
limitations  of  successive  remainders  after  the  determination  of 
the  estate-tail  in  P.  S.,  which  are  also  vested. ^ 

§  1568.  The  Case  of  LethieuUier  v.  Tracy  is  another  example 
of  a  vested  remainder  limited  after  a  contingent  one,  where  the 
contingency  on  which  it  depends  does  not  affect  the  subsequent 
remainders.  There  was,  in  that  case,  a  devise  to  a  daughter 
for  life,  remainder  to  trustees  to  support  contingent  remainder, 
remainders  to  her  first  and  other  sons  in  tail  ;  and  if  she  died 
without  issue  living  at  her  death,  then  to  trustees  and  their 
heirs  until  H.  N.  attained  twenty-one  years.  Then  the  devise 
was  to  H.  N.  for  his  life,  remainder  to  trustees  to  support  con- 
tingent remainders,  remainder  to  the  first  and  other  sons  of 

1  Napper  v.  Sanders,  Hutt.  117 ;  Fearne,  Cont.  Rem.  224. 


CONTINGENT    REMAINDERS.  535 

H.  N.  in  tail ;  and  in  default  of  such  issue,  or  in  case  H.  N. 
died  before  twenty-one  and  without  issue,  remainder  over  to 
S.  L.  for  life,  remainder  to  C.  L.  Two  or  three  things  are  to 
be  observed  in  analyzing  this  succession  of  estates,  and  reach- 
ing a  conclusion  in  respect  to  them.  The  devise  to  trustees  in 
the  first  clause  is,  as  above  explained,  merely  for  the  remainder 
of  the  life-estate  in  the  daughter,  if  she  should  forfeit  or  lose 
it  before  her  death.  And  as  to  the  second  limitation  to  trustees, 
though  in  terms  to  them  and  their  heirs,  and  apparently  consti- 
tuting an  immediate  remainder  in  fee,  with  remainders  limited 
after  its  determination,  yet  it  should  be  borne  in  mind  that  the 
duration  of  the  estate  of  a  trustee  is  measured  by  that  of  the 
equitable  estate  in  the  cestui  que  trust,  as  heretofore  shown.^ 
In  the  present  case,  therefore,  the  limitation  to  the  trustees  was, 
in  effect,  of  an  estate  determinable  upon  the  death  of  H.  N.,  or 
his  arriving  at  the  age  of  twenty-one.  This,  then,  would  be 
the  order  of  the  several  estates  in  tliis  case  -.first,  the  particular 
estate  to  the  daughter  for  life  ;  second,  remainder  to  her  issue, 
if  any  living  at  her  death  ;  third,  remainder  upon  failure  of  her 
issue  to  trustees,  etc.,  until  H.  N.  attained  twenty-one  years ; 
fourth,  remainder  to  H.  N.  for  life  after  attaining  twenty-one 
years ;  fifth,  remainder  to  his  sons,  etc.,  and  in  default  of  such 
issue;  sixth,  to  S.  L. ;  and  seventh,  VQinoAndiQY  to  C.  L.  The 
question  was,  whether  the  contingency  of  the  daughter's  dying 
without  issue  living  affected  any  subsequent  estate  except  that 
to  the  trustees ;  and  it  was  held  that  it  did  not,  and  that  the 
contingency  on  which  the  estate  to  the  trustees  was  limited 
was  not  only  her  dying  without  issue,  but  her  dying  thus  dur- 
ing the  minority  of  H.  N.  ;  that  H.  N.  being  alive,  and  S.  L. 
and  C.  L.  also  being  alive  and  capable  of  taking  as  the  several 
remainders  should  fall  in,  the  remainders  to  them  were  vested. 
In  respect  to  the  remainder  to  H.  N.,  Mr.  Fearne  says  it  was 
only  contingent  until  he  should  attain  twenty-one  years;  and 
Mr.  Cruise  follows  his  language.  But  in  Ambler  it  is  said, 
"  The  limitation  to  H.  N.  is  a  vested  remainder,"  p.  207 ;  and  in 
Atkyns,  p.  784,  "  The  subsequent  limitations  to  H.  N.,  after 
attaining  twenty-one,  and  likewise  to  the  Lcthieulliers,  are 
vested  remainders."     But  if  treated  as  contingent  until  H.  N. 

1  Ante,  §  1454. 


536  CONTINGENT    REMAINDERS. 

was  twcntj-one,  as  Mr.  Cruise  seems  to  regard  it,  u'liat  he  sajs 
is  true,  and  equally  illustrative  of  the  point  for  which  the  case 
is  cited:  "  This  contingency  extended  to  none  of  the  subsequent 
estates,  and  therefore  the  remainders  over  to  persons  in  esse 
were  vested."  ^ 

§  1569.  Of  Remainders  affected  by  Contingency  of  Prior  Re- 
mainders.—  Though,  as  has  been  shown,  there  may  be  a  vested 
remainder  limited  after  an  intermediate  contingent  one  between 
the  particular  estate  and  the  vested  remainder,  it  is  sometimes 
difficult  to  determine  whether  the  subsequent  remainder  is  a 
vested  one,  or  is  so  affected  by  the  contingency  on  which  the 
prior  one  depends,  and  which  renders  that  contingent,  as  to  be 
itself  contingent.  The  following  case  may  illustrate  the  nature 
of  such  a  contingency  in  a  prior  estate  as  will  raise  the  ques- 
tion whether  the  subsequent  one  is  affected  by  it  as  a  condition, 
though  the  case  is  one  of  executory  devise,  and  not  of  a  re- 
mainder proper,  and  the  reader  is  not,  therefore,  to  be  misled 
by  it :  A  devised  to  his  wife  for  life,  and  after  her  death  to  the 
child  of  which  she  was  enceinte;  and  if  lie  died  before  twenty- 
one,  then  a  devise  over.  The  wife  was  not  enceinte  ;  and  the 
question  was,  whether  her  being  enceinte  was  not  a  condition 
upon  which  the  devise  over  depended ;  and  it  was  held  that  it 
was  not,  and  that  the  devise  over,  notwithstanding  her  not 
being  enceinte,  was  good.^  A,  by  his  last  will,  devised  an 
estate  to  J.  S. ;  and  if,  or  in  case,  he  dies,  then  to  J.  D.  :  it  was 
held  not  to  create  a  contingent  remainder,  or,  in  fact,  any  re- 
mainder, in  J.  D.  The  contingency  contemplated  had  reference 
to  J.  S.  dying  or  not  before  the  testator.  If  he  survived  the 
testator,  he  took  a  fee.  If  he  died  in  the  testator's  lifetime,  the 
devise  would  lapse,  and  that  to  J.  D,  would  take  effect  immedi- 
ately on  the  death  of  A.^ 

§  1570.  First  Class  of  Successive  Remainders. — The  cases  in- 
volving questions  of  this  kind  have  been  divided  by  Mr.  Fearne, 
in  which  he  has  been  followed  by  other  writers,  especially  Mr. 
Cruise,  into  three  classes.     The  first  of  these  consists  of  limita- 

1  LethieuUier  v.  Tracy,  Ambl.  204 ;  s.  c.  3  Atk.  774  ;  2  Cruise,  Dig.  221  ; 
Fearne,  Cont.  Rem.  225 ;  Doe  d.  Lees  v.  Ford,  2  El.  &  B.  970 ;  1  Jarm.  Wills, 
755. 

2  2  Cruise,  Dig.  821  ;  6  id.  415  ;  Fearne,  Cont.  Rem.  133. 

8  Wright  V.  Stephens,  4  Barn.  &  Aid.  574;  Sims  v.  Conger,  39  Miss.  232. 


contingp:nt  remainders.  537 

tions  after  a  preceding  estate  which  is  made  to  depend  on  a 
contingency  which  never  takes  effect.  The  above-cited  cases 
of  Napper  v.  Sanders  and  Lethieullier  v.  Tracy  will  be  found 
to  come  within  this  class,  of  which  another  exam})le  is  fur- 
nished in  the  following  case :  A  devise  was  made  to  the  use  of 
the  testator's  son  for  life,  and  on  his  decease  remainder  to  the 
use  of  his  first  and  other  sons  by  any  future  wife,  in  tail  male. 
Then  followed  a  proviso,  that  if  the  son  should  marry  any 
■woman  related  to  his  present  wife,  the  uses  to  the  issue  of  such 
marriage  should  be  void,  and  the  premises  should  be  held  to  the 
use  of  the  children  of  John  Hay.  Nothing,  however,  was  said 
as  to  what  was  to  become  of  the  estate  if  the  son  did  not  so 
marry  ;  and  it  so  happened  that  he  did  not  marry  at  all,  leaving, 
of  course,  no  issue  of  any  marriage.  The  question  arose, 
whether  after  the  testator's  and  the  son's  death  the  children  of 
John  Hay  took  anything,  and  whether  the  marriage  of  the  son 
with  some  person  related  to  his  first  wife  was  not  a  condition 
precedent  on  which  this  devise  over  to  them  depended.  The 
court  held  that  this  contingency  only  affected  the  son's  own 
issue,  and  that  the  son  of  John  Hay  took  the  estate.^  And 
the  rule  upon  the  subject  may  be  stated  in  the  language  of 
Lord  Thurlow :  "  Wherever  the  prior  estate  is  made  to  depend 
upon  any  described  events  and  the  second  estate  is  to  arise  upon 
the  determination  of  that  event,  the  first  is  not  to  be  taken  as 
a  condition  precedent,  but  upon  its  failure  the  second  estate 
must  take  place."  ^ 

§  1571.  Second  Class  of  Successive  Remainders.  — The  second 
class  of  limitations  of  successive  remainders  of  which  the  first 
depends  upon  a  contingency  embraces  cases  of  limitations  over 
upon  a  conditional  determination  of  a  preceding  estate,  where 
such  preceding  estate  never  takes  effect. 

§  1572.  Illustration.  — A  devise  was  made  to  A  for  a  term  of 
years,  with  remainder  to  the  first  and  other  sons  of  B  in  tail 
male,  successively,  provided  they  should  take  the  name  of  the 
testator ;  but  in  case  they  should  refuse  to  take  his  name,  or 
should  die  without  issue,  then  to  the  first-born  son  of  C  in  tail 
male,  with   remainders  over.     In   terms,  this    is  a  limitation 

1  Feanie,  Cont.  Rem.  223 ;  3  Cruise,  Dig.  221  ;  Bradford  v.  Foley,  1  Doug.  63. 

2  Scatterwood  v.  Edge,  1  Sulk.  230,  n.  ;  Doe  v.  Brabant,  3  Bro.  Ch.  C.  393,  397. 


538  CONTINGENT   REMAINDERS. 

over  to  the  son  of  C  upon  the  conditional  determination  of  the 
])receding  estate  in  B's  sons  :  if  thej  refuse  to  take  the  testator's 
name,  or  if  they  die  without  issue,  it  goes  to  the  first-born  son 
of  C.  Now,  in  fact,  B  never  had  a  son,  and  is  dead.  The 
question  is,  whether  C's  son,  who  is  living  at  the  testator's 
death,  takes  any  estate  or  not.  If  the  condition  on  wdiich  B's 
son  was  to  take  affected  C's  son  also,  when  the  condition  failed 
as  to  the  former,  it  had  a  like  effect  on  the  latter.  But  if  the 
estate  to  B's  son  was  merely  precedent  to  that  of  C's  son,  the 
condition  annexed  to  it  did  not  affect  the  estate  of  the  latter  ; 
and  when  the  former  failed,  the  latter  took  effect  as  if  no  sucli 
prior  limitation  had  been  made.  And  this  was  the  construction 
which  the  court  gave  to  the  limitation.^ 

§  1573.  The  Third  Class  of  Successive  Remainders  comprises 
those  limited  to  take  effect  upon  the  determination  of  a  preced- 
ing estate  by  a  contingency,  which,  though  the  precedent  estate 
takes  effect,  never  happens.  Example :  A  devised  to  his  son  in 
tail  male,  remainder  to  B  for  life,  remainder  to  B's  son  in  tail 
male,  on  condition  he  should  change  his  name  ;  and  if  he  or  any 
son  of  liis  refused  to  do  so,  then  he  declared  the  devise  to  them 
to  be  void,  and  gave  the  estate  to  D.  The  son  died  witliout 
issue.  B  then  performed  the  condition,  but  died  without  issue. 
It  was  held,  that  D's  estate  in  remainder  was  defeated  by  B 
having  performed  the  condition,  upon  failing  to  do  which  the 
devise  to  him  was  to  be  void,  and  go  over  to  D.^ 

S  1574.  Devisor's  Intention  affects  such  Limitations.  —  The  de- 
termination of  these  questions,  however,  often  depends  upon  the 
intention  of  the  testator  as  expressed  in  his  will.  Thus,  where 
the  devise  was  to  trustees  to  pay  rents,  etc.,  to  the  testator's 
daughter  for  life,  with  a  provision,  that,  if  she  survived  lier 
husband,  they  were  to  hold  all  the  lands  to  her  for  life,  then  to 
her  son  and  the  heirs  of  his  body,  remainder  to  the  heirs  of  the 
body  of  the  husband,  and  other  remainders  over.  Now,  it  hap- 
pened that  the  daughter  died  before  her  husband.  One  set  of 
claimants  insisted,  that,  by  reason  of  this,  all  the  limitations 
over  failed  and  became  void,  as  they  depended  upon  the  contin- 
gency of  her  outliving  her  husband.     The  other  set  contended, 

1  Scatterwood  v.  Edge,  1  Salk.  230. 

2  Amherst  v.  Lytton,  3  Brown,  P.  C.  486 ;  Fearne,  Cont.  Rem.  238. 


CONTINGENT  REMAINDERS.  539 

that  this  contingency  affected  only  the  remainder  to  the  wife 
for  life.  But  the  court  held,  that  the  testator  intended  that  all 
these  limitations  should  depend  upon  the  contingency  of  her 
surviving  her  husband,  and  that  they  had  therefore  failed.^ 
And  where  there  is  no  apparent  distinction  in  view  in  tliis  re- 
spect between  the  several  successive  estates,  the  contingency  of 
the  first  would  ordinarily  affect  the  whole  train  of  ulterior  limi- 
tations.2  Thus,  where  the  devise  was  to  A  for  life,  remainder 
to  his  children,  and  if  he  die  without  children,  then  over,  it  was 
held  that  both  were  contingent  remainders  ;  but  if  a  child  were 
born,  the  remainder  would  vest  in  him  at  once,  subject  to  open 
and  let  in  after-born  children,  while  the  remainder  over  would 
be  gone  forever.^ 

§  1675.  Fee  with  a  Double  Aspect.  —  Notwithstanding  a  re- 
mainder limited  after  a  remainder  in  fee  would  be  void,  yet 
two  remainders  may  be  so  limited,  though  each  a  fee,  as  to  be 
good,  provided  this  is  so  done  that  only  one  is  to  take  effect,  the 
one  being  a  substitute  for,  and  not  subsequent  to,  the  other. 
The  consequence  is,  that,  if  the  first  takes  effect  and  becomes 
vested,  the  other  at  once  becomes  void.  Such  limitation  is 
said  to  be  of  a  fee  with  a  double  aspect.  A  case  illustrative  of 
this  proposition  is  that  of  Luddington  v.  Kime,  where  the  devise 
was  to  A  for  life ;  and  if  he  had  male  issue,  then  to  such  issue 
and  his  heirs  ;  but  if  A  died  without  issue  male,  then  to  T.  B. 
in  fee.  Here  are  two  remainders  contingent  in  their  character, 
and  both  in  fee,  dependent  upon  the  same  particular  estate,  and 
to  take  effect,  if  at  all,  upon  the  determination  of  that  estate ; 
and  only  one  of  these  can  take  effect.  If  A  has  issue,  the 
remainder  vests  at  once  in  such  issue,  and  defeats  the  limita- 
tion to  T.  B.  altogether.  On  the  other  hand,  if  A  dies  without 
issue,  T.  B.'s  remainder  at  once  vests  in  him,  and  takes  effect 
as  a  substitute  for  the  other  :  neither  is  by  its  terms  to  wait 
until  the  other  shall  have  once  taken  effect,  and  afterwards 
been  determined.*     And  it  is  stated  as  a  general  proposition, 

^  Doe  d.  AVatson  v.  Shippard,  1  Doug.' 75. 

2  2  Cruise,  Dig.  22-3 ;  1  Pre.st.  Est.  88  ;  Fearne,  Cont.  Rem.  235 :  Davis  v. 
Norton,  2  P.  Wms.  390. 

3  Doe  d.  Poor  v.  ConsiJine,  6  Wall.  477  ;  Doe  d.  Comberbach  v.  Perryn,  3  T.  R. 
484. 

*  Luddington  v.   Kime,  1   Lord  Eaym.  203;  2  Cruise,  Dig.  217  ;  1  Prest.  Est. 


540  CONTINGENT   REMAINDERS. 

that  although,  where  a  fee  is  given  by  a  vested  limitation, 
remainder  upon  it  must  be  an  executory  devise,  and,  if  it  be  too 
remote,  this  and  all  subsequent  remainders  are  void,  yet  if  a 
fee  be  limited  in  contingency,  and  the  estate  is  given  over  upon 
a  contingency  divesting  the  fee,  if  the  fee  so  limited  never  vests, 
the  gift  over  takes  effect  as  a  contingent  remainder.  And  an 
estate  may  be  devised  over  in  either  of  two  events ;  and  in  one 
event  the  devise  may  operate  as  a  contingent  remainder,  in  the 
other  as  an  executory  devise.^ 

§  1576.  Same  —  After  Limitation  necessarily  contingent.  — 
From  these  examples,  it  would  seem  to  follow,  almost  as  a 
corollary,  that,  if  there  is  a  contingent  remainder  limited  in 
fee,  no  after-limitation  dependent  upon  it  can  be  a  vested  one. 
Thus,  though  T.  B.  was  alive,  ready  and  capable  of  taking, 
except  so  far  as  his  capacity  depended  on  A's  dying  without 
issue,  yet  his  remainder  could  not  be  otherwise  than  contin- 
gent while  A  lived ;  for  so  long  as  he  lived,  there  was  a  possi- 
bility of  A's  having  issue,  and  thereby  rendering  the  limitation 
to  T.  B.  void,  by  the  first  remainder  absorbing  the  entire  fee.^ 
And  the  reader  will  remark  the  distinction  between  this  case 
and  the  one  before  mentioned,  of  a  remainder  being  vested 
though  subsequent  to  a  contingent  one,  since  in  that  case  the 
prior  contingent  remainder  was  for  life  only,  or  in  tail,  and  not 
in  fee-simple. 

§  1577.  Valid  Remainders  after  Trust  Estates  in  Fee.  —  Al- 
though a  fee  cannot  be  limited  by  way  of  remainder  after  a 
prior  estate  in  fee,  trusts  may  be  limited  to  trusiees  and  their 
heirs,  and  yet  be  determinable  estates,  upon  which  remainders 
may  be  limited,  if  the  nature  of  the  trust  and  the  estate  of  the 
cestui  que  trust  are  in  themselves  thus  determinable,  as  was 
illustrated  above  in  the  case  of  Lethieullier  v.  Tracy.^ 

§  1578.  Effect  upon  Remainders  of  Powers  of  Appointment.  — 
There  is  besides,  under  the  statute  of  uses,  a  mode  of  creating 
future   estates   by   what   is   called   a   power   of   appointment. 

94 ;  Dunwoodie  v.  Reed,  3  Serg.  &  R.  452  ;  Goodrigtt  v.  Dunham,  Dougl.  265  ; 
Hennessy  v.  Patterson,  85  N.  Y.  91. 

1  Doe  d.  Evers  v.  Challis,  2  E.  L.  &  Eij.  215,  225  ;  Doe  d.  Herbert  v.  Selhy, 
2  Barn.  &  C.  926. 

2  2  Cruise,  Dig.  220. 

8  Lethieullier  v.  Tracy,  3  Atk.  774. 


CONTINGENT    REMAINDERS.  541 

Thus,  for  instance,  A  by  his  will  devises  to  B  for  life,  with  a 
power  in  B,  or  some  other  person  named,  to  appoint  or  declare 
who  shall  have  the  estate  after  the  death  of  B.  Wlien  such 
appointment  or  designation  is  made,  the  appointee  takes  under 
and  by  virtue  of  the  will  of  the  testator  operating  directly 
upon  the  estate,  in  the  same  manner  as  if  the  testator  himself 
had  named  as  devisee  the  person  to  take  the  estate.  Sometimes 
the  testator  gives  such  a  power  in  his  will,  and  then  devises 
over  the  estate  to  take  effect  if  and  in  case  the  power  shall  not 
be  exercised.  Limitations  of  the  latter  kind  are  regarded  re- 
mainders, and  as  vested,  although  liable  to  be  defeated  if  the 
appointment  shall  be  made  to  another ;  for,  until  it  is  made, 
the  possibility  that  it  will  be  exercised  does  not  create  any 
estate,  and  therefore  produces  no  effect  upon  the  other  limi- 
tation, even  though  the  power  be  to  appoint  in  fee.  When 
exercised,  its  effect  is  merely  to  defeat  the  estate  limited,  and 
to  divest  it  from  him  to  whom  it  has  been  given.^ 

§  1579.  Future  Devise,  whether  vested  or  contingent.  —  Ques- 
tions of  considerable  difficulty  often  arise  under  wills,  in  rela- 
tion to  estates  whose  limitation  is  connected  with  some  future 
event,  to  determine  whether  the  vesting  depends  on  that  event, 
and  the  estate  is,  therefore,  a  conditional  one ;  or  whether  the 
mere  enjoyment  of  it  is  to  depend  upon  when  such  event  is  to 
happen,  the  estate  itself  being  a  vested  one.  Of  this  kind  was 
Boraston's  case,  already  cited,  where  the  devise  was  to  A  and  B 
for  the  term  of  eight  years,  with  remainder  to  the  testator's 
executors  until  such  time  as  H.  B.  should  arrive  at  twenty-one 
years  ;  and  when  he  should  come  of  full  age,  then  that  he 
should  enjoy  the  same  to  him  and  his  heirs  forever.  H.  B. 
died  before  he  was  twenty-one  years  of  age ;  and  the  question 
was,  whether  the  remainder  limited  to  him  was  vested  or  con- 
tingent prior  to  his  arriving  at  twenty- one.  It  was  held  to 
have  been  a  vested  one,  because  the  term  "  when,"  used  in  the 
devise,  applied  only  to  the  time  of  enjoyment,  and  not  the  time 
of  vesting  of  the  estate  in  him.^     Lord  Mansfield  laid  down 

1  Fearne,  Cont.  Rem.  226;  2  Cruise,  Dig.  221  ;  4  id.  146.  A  devisor,  however, 
cannot  by  his  will  reserve  to  himself  the  power  of  future  appointment.  Johnson  v. 
Ball,  5  De  G.  &  Sra.  85. 

2  Boraston's  case,  3  Rep.  19;  Toiulinson  v.  Dighton,  1  P.  Wms.  170;  Peterson's 


542  CONTINGENT   REMAINDERS. 

two  rules  applicable  to  cases  like  these:  the  first  of  which  is, 
that,  where  the  whole  property  is  devised,  a  particular  interest 
created  out  of  it  will  operate  as  an  exception  of  the  absolute 
property  given  to  the  devisee ;  the  second,  that  where  an 
absolute  property  is  given,  and  a  particular  interest  is  limited 
in  the  meantime,  as,  for  instance,  till  tlie  devisee  shall  come  of 
age,  and  tlie  like,  and  then  to  him,  it  shall  not  be  construed  as 
a  condition  precedent,  but  as  describing  the  time  when  the 
remainder-man  is  to  take  in  possession.  The  first  of  these 
rules  he  derives  from  Matthew  Manning's  case,  and  the  second 
from  the  above  case  of  Boraston.^ 

§  1580.  Vested  Remainders  upon  Condition  Subsequent.  — - 
Sometimes  an  estate  is  limited  upon  a  contingency,  to  which 
the  effect  of  a  condition  subsequent  is  given.  The  estate,  in 
such  case,  becomes  vested  at  once,  but  is  subject  to  be  divested 
by  the  happening  of  the  condition.  Thus,  for  instance,  a 
devise  was  to  E.  and  J.  for  their  lives  successively,  and  after 
the  death  of  the  longest  liver  of  them,  to  A  B,  if  he  lived  to 
attain  the  age  of  twenty-one  years,  but  if  he  died  before  that 
age,  then  to  C  B  if  he  survived  A  B  and  attained  the  age  of 
twenty-one  years.  It  was  held,  that  the  remainder  vested  at 
once  in  A  B  in  fee,  but  was  subject  to  be  defeated  if  he  died 
before  twenty-one  years  of  age,  and  then  it  would  pass,  not  as 
a  remainder,  but  as  an  executory  devise  to  C  B.^ 

App.,  88  Penn.  St.  397  ;  Daniels  v.  Eldredge,  125  Mass.  356  ;  Wright  v.  White, 
136  Mass.  470.     See  also  aiitc,  §  1544. 

1  Manning's  case,  8  Rep.  94  b ;  Bovaston's  case,  3  Rep.  19  ;  Goodtitle  v.  Whitby, 
1  Burr.  233.  See  Doe  d.  Wheedon  v.  Lea,  3  T.  R.  41 ;  Doe  d.  Hunt  v.  Moore,  14 
East,  601.  Furness  v.  Fox,  1  Gush.  134,  though  a  case  of  bequest  of  a  legacy, 
involves  the  same  rule  of  law. 

2  Bromfield  v.  Crowder,  1  Bos.  &  P.  N.  R.  313  ;  Edwards  v.  Hammond,  3  Lev. 
132  ;  Doe  d.  Hunt  v.  Moore,  14  East,  601 ;  Blanchard  v.  Blanchard,  1  Allen,  223 ; 
Manice  v.  Manice,  43  N.  Y.  380. 


THE   VESTING   OP    CONTINGENT   REMAINDERS.  543 


CHAPTER  LXVII. 

CONTINGENT   REMAINDERS  —  THE    VESTING    OP    CONTINGENT 
REMAINDERS. 

§  1581.  Legality  of  contingency. 

1582.  Event  must  not  be  too  remote. 

1583.  Double  possibility. 

1584.  What  limitations  would  be  too  remote. 

1585.  Event  must  not  abridge  particular  estate. 

1586.  Illustrations. 

1587.  Destruction  of  particular  estate  by  merger. 

§  1581.  Legality  of  Contingency.  —  In  the  first  place,  to  Create 
a  valid  contingent  remainder,  the  contingency  upon  which  it  is 
to  vest  must  be  a  lawful,  or  at  least  not  an  unlawful  one  ;  and 
where,  therefore,  a  remainder  was  limited  to  a  bastard  not  in 
esse,  it  was  held  to  be  void.^ 

§  1582.  The  Event  must  not  be  too  remote,  or  beyond  what 
is  deemed  in  law  to  be  a  common  possibility,  such  as  that  of 
the  death  of  a  person,  or  of  his  dying  without  issue  or  of 
coverture,  or  the  like.  If  the  event  is  not  within  such  a  pos- 
sibility, a  limitation  dependent  upon  it  is  void  at  common 
law.2 

§  1583.  Double  Possibility.  —  There  has  been  a  great  deal  of 
refinement  and  subtlety  expended  in  applying  this  rule  against 
two  remote  possibilities  in  determining  questions  of  limitation 
of  future  estates.  Lord  Coke,  drawing  his  premises  from  the 
logic  of  the  schools,  laid  it  down  as  a  rule  of  construction,  that 
a  double  possibility,  or  a  possibility  upon  a  possibility,  would 
not  be  sufficient  to  support  a  limitation  in  the  way  of  remain- 
der.    Such  a  limitation  would  be  one  to  A  for  life,  remainder 

1  Wms.  Real  Prop.  226 ;  Blodwell  v.  Edwards,  Cro.  Eliz.  509. 

2  Cholmley's  case,  2  Rep.  51  6;  2  Bl.  Com.  169  ;  Dennett  v.  Dennett,  40  N.  H. 
503.  But  this  is  altered  by  statute  in  some  of  the  States,  whereby  the  remoteness 
of  the  probability  does  not  affect  the  validity  of  the  limitation.  Post,  note  at  the 
end  of  chapter  Ixviii. 


544  CONTINGENT   REMAINDERS. 

to  William,  the  son  of  J.  S.,  when  J.  S.  has  no  son.  Now,  had 
it  been  to  the  son  of  J,  S.,  it  would  have  been  an  ordinary 
single  possibility  that  he  might  have  a  son,  and  would  be  good. 
But  where  not  only  J.  S.  must  have  a  son,  but  one  who  must 
be  afterwards  called  William,  it  went  beyond  a  mere  possi- 
bility, and  required  a  double  possibility,  or  a  possibility  upon  a 
possibility,  and  was  therefore  void.  But  fortunately  a  rule 
involving  such  subtle  distinctions  is  now  discarded,  and  a 
limitation  like  that  supposed  would  be  good.^ 

§  1584.  What  Limitations  -would  be  too  remote.  — And  yet 
there  may  be  limitations  too  remote '  to  be  allowed  in  the 
disposition  of  an  estate.  Thus,  an  estate  cannot  be  limited  to 
an  unborn  person  for  life,  followed  by  an  estate  to  a  child  of 
such  unborn  person.  The  limitation  to  the  child  of  such 
unborn  person  would  be  void  as  being  too  remote.^  So  a 
devise  to  the  right  heirs  of  A  B,  when  there  is  no  such  person 
as  A  B  living,  would  be  too  remote  and  void.^  But  a  gift  in 
remainder  to  an  unborn  person,  either  for  life  or  in  tail  or  in 
fee,  will  be  good,  unless  it  is  preceded  by  a  gift  for  life  or 
in  tail  to  the  unborn  parent  of  that  person.*  So  if  the  estate 
to  the  children  of  an  unborn  child  be  an  estate-tail,  the 
courts,  in  order  to  give  effect,  as  near  as  may  be,  to  the  inten- 
tion of  the  testator,  hold  that,  in  such  a  case,  the  devise  of  the 
estate  to  the  unborn  person  for  life  shall  be  construed  to  be  an 
estate-tail  in  him,  so  that,  if  he  does  not  bar  the  entail,  the 
general  intent  of  the  devisor  that  it  should  go  to  his  issue  will 
be  effected.^     The   result  of  applying  the  rule  last  stated  in 

1  Wms.  Real  Prop.  227  ;  Cole  v.  Sewell,  4  Dru.  &  Wair.  27  ;  s.  c.  2  H.  L. 
Cas.  186. 

2  Wms.  Real  Prop.  228;  2  Prest.  Abst.  115;  Jackson  d.  NicoU  v.  Brown,  13 
Wend.  442,  446  ;  Watk.  Conv.  196,  Coventry's  note  ;  Hay  v.  Coventry,  3  T.  R.  86  ; 
Brndenell  v.  Elwes,  1  East,  452.  This  may  be  assumed  as  a  dogma  of  universal 
application,  whether  originally  an  inference  or  not,  drawn  from  any  rules  against 
perpetuity  affecting  the  alienation  of  estates. 

3  2  Bl.  Com.  170;  Counden  v.  Gierke,  Hob.  33  a. 

*  2  Prest.  Abst.  115;  per  Lord  Kenyon,  Brndenell  v.  Elwes,  1  East,  453;  2  Bl. 
Com.  170  ;  2  Fearne,  Cont.  Rem.  Smith's  ed.  §§  711,  713  ;  Watk.  Conv.  193, 
Coventry's  note  ;  Jackson  d.  Nicoll  v.  Brown,  13  Wend.  437- 

6  Monypenny  v.  Bering,  16  Mees.  &  W.  428  ;  Fearne,  Cont.  Rem.  204,  Butler's 
note  ;  Den  d.  Webb  v.  Puckey,  5  T.  R.  303,  -per  Lord  Kenyon  ;  Wms.  Real  Prop. 
230,  and  Rawle's  note;  Allyn  v.  Mather,  9  Conn.  127;  Chapman  v.  Brown, 
3  Burr.   1626  ;  Jackson  d.  Nicoll  v.   Brown,    13  Wend.   437 ;  Watk.  Conv.  196, 


THE    VESTING    OP   CONTINGENT   REMAINDERS.  545 

those  States  where  fees-tail  are  abolished,  is,  that  such  first- 
named  unborn  person  will  take  a  fee-simple,  although  the 
estate  is  expressly  given  him  for  life.^  But  this  would  be  con- 
fined to  devises,  and  not  extend  to  conveyances  at  common 
law.2  The  rule,  as  applicable  to  the  case  of  a  will,  seems  to 
rest  upon  an  admitted  principle  that "  there  may  be  a  general 
and  a  particular  intent  in  a  will,  and  that  the  latter  must 
give  way  when  the  former  cannot  otherwise  be  carried  into 
effect."  3 

§  1585.  The  Event  must  not  abridge  the  Particular  Estate  ;  for 
it  is  of  the  essence  of  a  remainder  that  it  should  wait  until  the 
particular  estate  has  had  a  natural  determination,  according  to 
the  terms  of  its  limitation.  The  remainder  must  not,  therefore, 
be  in  the  nature  of  a  condition  at  common  law  which  may 
defeat  the  particular  estate:  for,  first,  no  one  but  the  grantor  in 
such  a  case  could  take  advantage  of  it ;  and,  second,  upon  his 
doing  so  in  the  only  way  in  which  it  can  be  done,  —  namely, 
by  the  making  of  an  entry,  —  he  would  thereby  regain  his 
original  seisin,  and  defeat  the  seisin  as  well  as  the  freehold 
on  which  the  remainder  depended :  *  wherefore  no  remainder 
could  be  limited  upon  a  condition.  If  the  particular  estate  be 
limited  to  two,  with  a  remainder  over  upon  the  death  of  one  of 
them  to  a  stranger  in  fee,  the  remainder  is  void,  because  as  the 
survivor  must  have  the  estate  for  life  by  reason  of  his  having 
been  a  joint-tenant  with  the  deceased,  the  limitation  over  upon 
the  death  of  one  can  only  take  place  by  defeating  the  estate  of 
the  survivor.  Had  the  limitation  been  to  the  survivor  instead 
of  a  stranger,  it  would  have  been  good.^ 

§  1586.  Illustrations.  —  The  proposition  that  a  remainder 
must  not  abridge  the  particular  estate  may  be  illustrated  by  a 

Coventry's  note  ;  Huinberston  v.  Hiimberston,  1  P.  Wnis.  332.  As  to  the  applica- 
tion of  the  rule  against  perpetuities  to  contingent  remainders,  see  post,  chapter 
Ixxxiii. 

1  Jackson  d.  NicoU  v.  Brown,  13  Wend.  447. 

2  Wms.  Eeal  Prop.  229,  n.  ;  3  Report  Eng.  Com.  4. 

8  Doe  d.  Cock  v.  Cooper,  1  East,  234 ;  Allyn  i;.  Mather,  9  Conn.  127  ;  Doebler's 
App.,  64  Penn.  St.  15  ;  Nourse  v.  Merriam,  8  Cush.  11,  where  the  devise  was  to  a 
town  for  a  school,  but  excluding  certain  families  from  attending  it. 

*  1  Prest.  Est.  91  ;  2  Cruise,  Dig.  234,  238.  See  post,  note  at  the  end  of 
chapter  Ixviii. 

6  2  Cruise,  Dig.  235,  237. 
VOL.  II.  —  35 


546  CONTINGENT   REMAINDERS. 

limitation  of  an  estate  to  a  widow  with  an  expectant  estate 
depending  upon  it.  Thus,  supposing  it  were  desired  to  limit 
an  estate  expectant  upon  her  marrying  again,  it  would  not  do 
to  make  an  estate  to  her  for  life,  remainder  to  A  B  in  fee  on 
condition  she  remains  a  widow  ;  for  if  the  heir  were  to  enter 
upon  her  marrying  again,  and  defeat  the  estate,  he  would  also 
defeat  the  remainder.  To  accomplish  the  desired  purpose,  tlie 
limitation  to  the  widow  should  be  during  her  widowhood,  with 
remainder  over.  The  remainder,  upon  her  marrying  again, 
will  then  take  effect  upon  the  natural  determination  of  her 
estate.^  But  it  will  be  understood  that  the  propositions  here 
sought  to  be  illustrated  apply  only  to  estates  at  common  law ; 
for  a  limitation  of  an  estate  after  a  prior  one  which  is  to 
abridge  or  defeat  the  first  may  be  good  if  created  by  will,  as  a 
conditional  limitation.^  But  if  the  happening  of  the  contingent 
event  gives  effect  to  a  remainder  without  affecting  the  particu- 
lar estate,  it  may  be  a  good  remainder.  Thus,  where  an  estate 
was  limited  to  A  for  life,  remainder  to  his  son,  and  if  he  died 
in  the  lifetime  of  A,  then  to  B,  there  would  be  a  good  remainder 
in  B  ;  for  the  dying  of  the  son  did  not  affect  A's  estate,  but 
merely  fixed  the  time  at  which  the  estate  in  B  became  vested ;  ^ 
though  an  estate  so  limited  after  another  as  to  take  effect  on  a 
condition,  and  which  would  defeat  the  remainder  previously 
limited,  though  it  did  not  affect  the  particular  estate,  would  be 
void  as  a  remainder,  because  limited  on  such  a  condition. 
Thus,  where  the  limitation  was  to  B  for  life,  remainder  to  C 
for  life,  provided  that,  if  the  grantor  had  a  son  during  his  life 
who  lived  to  the  age  of  five  years,  the  estate  limited  to  C  should 
cease,  and  the  estate  remain  to  the  son  in  fee-tail,  the  remainder 
to  the  son  was  held  void.^ 

§  1587.  Destruction  of  Particular  Estate  by  Merger. — A  re- 
mainder may  nevertheless  be  good,  though  limited  upon  an  event 
that  destroys  the  particular  estate  wliich  supports  it,  provided 
it  takes  place  by  a  union  of  the  particular  estate  with  the  re- 
mainder, so  as  to  merge  the  one  in  the  other ;  though  this  can- 

1  2  Cruise,  Dig.  235;  Fearne,  Cont.  Rem.  262. 

2  Brattle  Sq.  Ch.  'v.  Grant,  3  Gray,  149  ;  Sheffield  v.  Orrery,  3  Atk.  282 ; 
Fearne,  Cont.  Rem.  239,  262,  407. 

8  2  Cruise,  Dig.  235. 

*  Cogan  V.  Cogan,  Cro.  Eliz.  360. 


THE   VESTING    OP   CONTINGENT   EEMAINDERS.  547 

not  occur  where  the  remainder  is  limited  to  a  stranger, —  a 
person  other  than  the  tenant  of  the  particular  estate.  Thus, 
where  the  estate  was  limited  by  A  to  his  wife  and  daughter  for 
their  lives  and  the  life  of  the  survivor,  and  if  the  daughter  had 
issue,  then,  after  the  death  of  the  wife,  to  the  daughter  and  her 
heirs  forever,  and  if  the  daughter  died  single  or  without  issue, 
then  to  the  wife  and  her  heirs,  it  would  be  a  good  contingent 
remainder  to  the  daughter  and  the  wife  respectively.  But  the 
moment  it  should  take  effect  in  the  daughter  by  lier  having 
issue,  and  upon  the  death  of  the  wife,  or  in  the  wife  upon  the 
death  of  the  daughter  without  issue,  it  would  cease  to  be  a 
remainder  by  merging  the  life-estate  in  itself  as  an  estate  in 
possession,  of  inheritance,  with  which  she  had  thereby  become 
clothed,  as  in  that  event  the  tenant  for  life  would  have  become 
the  owner  of  the  inheritance.^  But  where  the  devise  was  to  A 
and  his  wife  B  for  life,  and  to  the  survivor,  with  a  remainder 
to  several  others  named,  one  of  whom  conveyed  his  interest  to 
the  husband  in  his  lifetime,  it  was  held  not  to  merge  his  life- 
estate  in  this  share  in  the  remainder,  because  of  the  contingent 
intervening  right  of  his  wife  to  a  life-estate  in  it  if  she  outlived 
him.'-^ 

1  Goodtitle  v.  Billington,  Doug.  753. 
^  Johnson  v.  Johnson,  7  Allen,  197. 


548  CONTINGENT   REMAINDERS. 


CHAPTER   LXVIII. 

CONTINGENT   REMAINDERS  —  THE   PARTICULAR   ESTATE. 

§  1588.  Must  be  a  freehold  if  remainder  a  freehold. 

1589.  Exception  to  above  rule. 

1590.  Remainder  for  years  needs  no  freehold. 

1591.  Effect  of  disseisin  of  particular  estate. 

1592.  Loss  of  particular  estate  before  remainder  vests. 

1593.  Remainder  to  child  en  ventre  sa  mere. 

1594.  Trusts  supporting  contingent  remainders. 

1595.  Remainder  may  take  effect  as  to  some  and  not  as  to  others. 

1596.  Remainder  to  class  only  part  of  whom  in  esse. 

§  1588.  Must  be  a  Freehold  if  Remainder  a  Freehold.  —  Eor  rea- 
sons heretofore  explained,  the  particular  estate  to  sustain  a  con- 
tingent remainder  must  be  a  freehold  interest  if  the  remainder 
is  a  freehold,  since  the  holder  of  any  less  estate  could  not  take 
and  hold  the  seisin  which  is  necessary  to  give  effect  to  the 
remainder,  where  it  comes  to  vest  in  interest  and  possession, 
or  could  not  be  "  tenant  of  the  praecipe,"  as  it  was  called,  to 
answer  in  suits  to  recover  the  freehold. ^  This,  however,  will 
be  understood  to  be  the  rule  of  the  common  law,  since,  in  some 
of  the  States,  a  freehold  estate  is  not  necessary  to  support  what 
answers  to  a  remainder  at  common  law.^ 

§  1589.  Exception  to  above  Rule.  —  For  reasons  heretofore 
explained,  if  the  prior  estate  be  a  term  for  years,  determinable 
upon  the  death  of  the  tenant,  and  the  term  be  so  long,  that, 
upon  the  ordinary  chances  of  life,  the  tenant  will  die  before  it 
terminates,  it  is  regarded  as  so  far  a  freehold  interest  that  a 
contingent  remainder  limited  upon  it  will  be  good.^ 

§  1590.  Remainder  for  Years  needs  no  Freehold.  —  And  if  the 
remainder  be  for  a  term  of  years,  it  does  not,  though  contin- 

1  Burt.  Real  Prop.  §  33  ;  3  Report  Eng.  Com.  5;  2  Bl.  Com.  171. 

2  See  post,  note  at  ttie  end  of  chapter  Ixviii. 

3  Ante,  §§  1563,  1567,  1568  ;  Napper  v.  Sanders,  Hutt.  118  ;  Countess  of  Bar- 
bie's case,  cited  in  Littleton's  Reports,  370  ;  Fearne,  Cont.  Rem.  20-22 ;  2  Cruise, 
Dig.  243. 


THE   PARTICULAR   ESTATE.  549 

gent,  require  a  particular  estate  of  freehold  to  support  it,  since 
no  seisin  passes  out  of  the  grantor  when  he  creates  it ;  and,  of 
course,  no  one  need  be  constituted  to  keep  it  till  the  remainder 
takes  effect.  And  until  such  future  estate  takes  effect  in  pos- 
session, the  limitation  operates  as  a  contract,  and  not  as  an 
estate.  In  such  a  case  the  prior  or  particular  estate  and  the 
so-called  remainder  are  not  parts  of  one  and  the  same  estate  as 
where  the  grantor's  whole  estate  goes  out  of  him  to  the  partic- 
ular tenant  and  remainder-man,  but  they  are  in  effect  two 
successive  estates,  distinct  and  independent,  being  grounded 
upon  several  contracts.^ 

§1591.  Effect  of  Disseisin  of  Particular  Estate.  —  Although 
the  loss  of  his  estate  by  the  tenant  of  the  particular  estate, 
whereby  he  is  divested  of  his  seisin,  defeats  at  the  common 
law  a  freehold  contingent  remainder  dependent  upon  it,  for 
reasons  which  will  be  hereafter  more  fully  explained,  yet  if  it 
be  by  disseisin  only,  and  the  tenant  of  the  particular  estate 
still  has  a  present  right  of  entry,  the  remainder  will  not  be 
defeated.^  Whereas  if  his  right  of  entry  be  lost,  and  to  obtain 
it  he  must  bring  an  action  in  order  to  regain  his  seisin,  it 
implies  that  the  seisin  is  actually  out  of  him  and  in  another 
person  holding  adversely  to  the  title  under  which  he  claims, 
and  the  remainder  dependent  upon  it  is  therefore  defeated.^ 
So,  at  common  law,  a  discontinuance  created  by  a  tenant  in 
tail,  by  aliening  the  estate,  would  cut  off  a  remainder  dependent 
upon  it,  since  the  issue  in  tail  thereby  lost  a  right  of  entry,  and 
were  driven  to  an  action  to  regain  the  seisin.* 

§  1592.  Loss  of  Particular  Estate  before  Remainder  vests,  — 
The  remainder  must  vest  or  become  an  actual  estate  durinjr 
the  continuance  of  the  estate  which  supports  it,  or  eo  instanti 
that  that  estate  determines.^  If,  therefore,  there  is  so  far  an 
interruption  of  the  seisin  as  to  deprive  the  holder  of  the 
particular  estate  of  a  present  right  of  entry  in  the  same,  before 

1  Fearne,  Cont.  Rem.  285 ;  2  Cruise,  Dig.  244 ;  Corbet  v.  Stoue,  T.  Raym.  151. 

2  Wms.  Real  Prop.  234 ;  2  Cruise,  Dig.  245. 

8  Fearue,  Cont.  Rem.  286,  289,  Butler's  note  ;  Davies  v.  Bush,  1  M'Clell. 
&  Y.  88. 

*  2  Cruise,  Dig.  245. 

6  2  Cruise,  Dig.  246  ;  1  Prest.  Est.  90 ;  Wms.  Real  Prop.  225  ;  2  Prest.  Abst. 
114  ;  Doe  d.  Mussell  v.  Morgan,  3  T.  R.  763. 


550  CONTINGENT   REMAINDERS. 

the  remainder  vests,  so  that,  tvhen  the  contingency  happens  on 
which  it  is  to  vest,  the  estate  of  the  tenant  of  the  particular 
estate  or  a  present  right  of  entry  is  not  in  esse,  no  subsequent 
restoration  of  the  same  will  revive  or  give  effect  to  the  re- 
mainder, which  has  once  failed  for  want  of  support.^  Thus  it 
is  said,  "  If  there  be  a  tenant  for  life  with  a  contingent  remain- 
der, and  he  makes  a  feoffment  in  fee  upon  condition,  and  the 
particular  estate  determines  before  the  condition  is  broken,  the 
contingent  remainder  is  destroyed ;  for  there  must  be  a  partic- 
ular estate,  or  a  present  right  of  entry,  when  the  contingency 
happens.  But  if  the  tenant  for  life  enters  for  breach  before 
the  contingency  happen,  the  contingent  remainder  is  revived, 
and  may  vest."  ^ 

§  1593.  Remainder  to  Child  en  Ventre  sa  MSre.  — And  SO  far 
was  this  carried  at  common  law,  that,  if  the  child  who  was  to 
take  the  remainder  were  en  ventre  sa  mere  at  the  determination 
of  the  particular  estate,  the  remainder  failed.  But  this  is  now 
remedied  by  regarding  such  child  as  already  born  for  the 
purposes  of  taking  an  estate  by  limitation  or  descent.^ 

§  1594.  Trusts  supporting  Contingent  Remainders.  —  In  trust- 
estates,  though  generally  governed,  so  far  as  contingent  re- 
mainders are  concerned,  by  the  same  rules  as  estates  at 
common  law,  a  rule  prevails,  that  a  legal  estate  of  freehold  in 
the  trustee  will  support  a  contingent  limitation  of  the  estate 
of  a  cestui  que  trust,  although  this  may  not  vest  by  the  time 
the  preceding  equitable  limitation  in  trust  expires.*  Nor  can 
any  cestui  que  triist,  having  a  prior  trust-estate,  destroy  a  con- 
tingent remainder  expectant  upon  his  estate  by  any  mode  of 
conveyance,  since  the  legal  estate  in  the  trustee  will  support 
the  remainders  as  they  rise.^ 

§  1595.  Remainder  may  take  Effect  as  to  some  and  not  as 
to  others.  — As  a  consequence  of  carrying  out  at  common  law 

1  Fearne,  Cout.  Rem.  315  ;  Purefoy  v.  Rogers,  2  Lev.  39. 

2  Thompson  v.  Leach,  2  Salk.  576. 

3  Reeve  v.  Long,  1  Salk.  227;  Stat.  10  &  11  Wm.  IIL  c.  16 ;  4  Kent,  Com. 
249  and  note. 

*  Fearne,  Cent.  Rem.  304,  and  Butler's  note;  2  Cruise,  Dig.  247;  Hopkins  r. 
Hopkins,  1  Atk.  590  ;  Wms.  Real  Prop.  239  ;  1  Prest.  Est.  241. 

6  Fearne,  Cont.  Rem.  21  a,  and  Butler's  note ;  Davies  v.  Bush,  1  M'Clell.  &  Y. 
82  ;  2  Cruise,  Dig.  270;  Penhey  v.  Hurrell,  2  Freem.  213  ;  ante,  §  1458. 


THE    PARTICULAR    ESTATE.  551 

the  principles  above  stated,  relative  to  the  event  upon  which, 
and  the  time  when,  a  contingent  remainder  must  be  limited  to 
vest  in  interest,  such  a  remainder  may  take  effect  as  to  some 
of  the  persons  to  whom  it  is  limited,  and  fail  as  to  others,  by 
reason  of  their  not  being  in  esse  when  the  particular  estate 
determines.  Thus,  where  a  limitation  is  made  to  A.  for  life, 
remainder  to  the  heirs  of  J.  and  K.,  and  J.  dies  before  A.,  but 
K.  survives  him,  the  effect  will  be  that  J.'s  heirs  alone  can 
take.^ 

§  1596.  Remainder  to  Class  only  Part  of  whom  in  esse.  — 
But  if  the  limitation  be  by  devise  to  a  class  of  persons,  any  of 
whom  are  alive  and  capable  of  taking  at  the  death  of  the 
testator,  the  enjoyment  of  which  is  postponed  till  after  the 
expiration  of  a  particular  estate,  the  estate  will  vest  in  such  as 
are  capable  of  taking  at  the  death  of  the  testator,  and  will 
open  and  let  in  such  of  the  same  class  as  may  come  in  esse 
during  the  continuance  of  the  particular  estate.^ 

1  2  Cruise,  Dig.  256;  Fearne,  Cont.  Rem.  312;  Griffith  v.  Pownall,  13  Sim. 
393. 

2  Doe  d.  Comberbach  v.  Perryn,  3  T.  R.  484 ;  3  Prest.  Conv.  555  ;  Fearne, 
Cont.  Rem.  315,  and  Butler's  note;  2  Jarm.  Wills,  76,  and  Perkins'  note  of 
American  cases  ;  Doe  d.  Barnes  v.  Provoost,  4  Johns.  61 ;  Moore  v.  Weaver,  16 
Gray,  307  ;  Hinkson  v.  Lees,  181  Penn.  St.  225 ;  s.  c.  37  Atl.  Rep.  338  ;  Lariverre 
V.  Rains,  112  Mich.  276;  s.  c.  70  N.  W.  Rep.  583;  ante,  §  1545. 


652  CONTINGENT   REMAINDERS. 


CHAPTER  LXIX. 

CONTINGENT    REMAINDERS  —  HOW   DEFEATED. 

§  1597.  By  destruction  of  particular  estate  before  vesting." 

1598.  Conveyances  under  statute  of  uses. 

1599.  Exception  to  effect  of  merger  of  estates  on  remainders. 

1600.  Trusts  to  preserve  contingent  remainders. 
Note.  Statutes  affecting  remainders. 

§  1597.  —  By  Destruction  of  Particular  Estate  before  vesting. 
• — At  common  law,  there  were  various  w^ajs  iii  which  a  con- 
tingent remainder  might  be  defeated,  by  destroying  the  par- 
ticular estate  on  which  the  remainder  depended  before  it 
vested.  It  might  be  done  by  a  feoffment  or  forfeiture,  or  by 
surrender  by  the  tenant  to  the  reversioner  or  remainder-man, 
or  by  the  inheritance  descending  upon  the  tenant  and  merging 
his  particular  estate  in  itself,  or  by  the  particular  estate  and 
the  inheritance  becoming  united  by  conveyance  or  act  of  the 
parties,  since  the  outstanding  of  a  contingent  remainder  would 
not  prevent  the  merging  of  the  two,  it  not  being  an  intervening 
estate.^  So  where  the  prior  or  particular  estate  was  upon  con- 
dition, and,  before  the  remainder  had  vested,  the  condition 
was  broken,  and  an  entry  had  been  made  for  the  breach, 
whereby  the  estate  was  defeated  by  forfeiture,  it  was  held  to 
defeat  the  remainder  also.^ 

§  1598.  Conveyances  under  Statute  of  Uses.  —  If  the  convey- 
ance by  the  tenant  were  by  any  form  deriving  its  validity 
from  the  statute  of  uses,  it  would  not  have  the  effect  to  disturb 

1  Penhey  v.  Hurrell,  2  Freem.  213  ;  Fearne,  Cont.  Rem.  316,  340 ;  2  Cruise, 
Dig.  269 ;  Davies  v.  Gatacre,  5  Bing.  N.  C.  609 ;  Purefoy  v.  Rogers,  2  Lev.  39  ; 
2  Bl.  Com,  171;  Wms.  Real  Prop.  233;  Archer's  case,  1  Rep.  66  b.  For  an 
example  of  an  intervening  contingent  remainder  being  thus  squeezed  out,  see 
ante,  §  367. 

2  Williams  i;.  Angell,  7  R.  I.  152. 


HOW   DEFEATED.  553 

a  contingent  remainder  dependent  upon  it,  since  it  would  only 
pass  what  the  tenant  might  lawfully  convey,  and  not  destroy 
the  estate  of  any  person.^ 

§  1599.  Exception  to  Effect  of  Merger  of  Estates  on  Remain- 
ders. —  And  there  is  an  exception  as  to  the  effect  of  the  union 
of  the  particular  estate  and  reversion  of  the  inheritance  in  one 
ownership,  operating  to  bar  the  contingent  remainder,  where 
the  particular  estate  and  remainder  are  created  by  will,  and 
the  reversionary  inheritance  comes  by  descent  upon  the  tenant 
of  the  particular  estate.  Here,  by  the  ordinary  rules  of  law, 
the  life-estate  and  the  inheritance,  coming  together  in  the 
same  ownership,  would  merge.  But  if  that  effect  were  allowed 
in  this  case,  it  would  make  one  provision  in  a  will  destroy 
another,  against  the  intention  of  the  devisor.  And  it  is 
accordingly  held,  that,  in  such  case,  the  union  of  the  two 
estates  shall  not  operate  to  destroy  the  contingent  remainder, 
but  they  shall  open  and  let  it  in  when  it  arises.^  But  if  the 
tenant  for  life  under  a  devise  were  not  the  heir  of  the  devisor, 
and  acquired  the  inheritance  mediately  by  grant,  devise,  or 
descent  from  the  heirs  of  the  devisor  or  some  other  devisee, 
the  union  of  the  two  estates  would  operate  to  destroy  the 
contingent  remainder  by  their  life-estate  merging  in  the 
inheritance.^ 

§  1600.  Trusts  to  preserve  Contingent  Remainders.  —  It  was  to 
guard  against  the  possibility  of  any  tortious  acts  on  the  part 
of  the  tenant  of  the  particular  estate,  defeating  the  contingent 
remainder  dependent  upon  it,  that  the  scheme  of  "  trustees 
to  preserve  contingent  remainders  "  was  devised,  as  it  is  said, 
by  Sir  Geoffrey  Palmer  and  Sir  Orlando  Bridgman,  in  the  time 
of  the  English  Commonwealth.  The  effect  of  this  was,  to 
have  some  one  with  a  vested  remainder,  competent  at  any 
moment  to  take  and  hold  the  particular  estate  for  the  balance  of 
the  term  of  its  original  limitation,  if  the  first  tenant  thereof 
were  to  defeat  his  own  estate  by  forfeiture  or  other  act,  or  if 

1  2  Sand.  Uses,  11  ;  Fearne,  Cont.  Rem.  321  ;  Smith  i:  Clyfford,  1  T.  R.  744  ; 
Dennett  v.  Dennett,  40  N.  H.  498,  505. 

2  Crisfield  v.  Storr,  36  Md.  129. 

3  Fearne,  Cont.  Rem.  340,  Butler's  note;  Crump  v.  Norwood,  7  Taunt.  362  ; 
2  Cruise,  Dig.  273 ;  ante,  §  339. 


554  CONTINGENT   REMAINDERS. 

his  estate  and  the  inheritance  were  to  merge  so  as  otherwise  to 
destroy  it.^  Tlie  necessity  of  such  a  precaution  is  now  done 
away  with  in  England,  and  in  most  if  not  all  the  United  States, 
so  that  a  contingent  remainder  cannot  be  defeated  by  a  deter- 
mination of  the  particular  estate  of  freehold  by  forfeiture, 
surrender,  or  merger,  and,  in  some  of  the  States,  by  no 
determination  of  sucii  particular  estate  by  any  means  what- 
ever,^ * 

*  Note. —  The  following  are  tlie  statutory  provisions  in  the  various  States 
relating  to  remainders  (see  §  1616,  note,  for  statutes  affecting  the  Eule  in  Shelley's 
case)  :  — 

Alabama.  ■ —  Contingent  remainders  given  the  effect  of  executory  devises.  Post- 
humous children  take  remainders  limited  to  "heirs,"  "issue,"  or  children.  Code, 
1896,  §§  1022,  1026. 

California.  —  Kemainder  in  fee  may  be  limited  on  a  fee-tail,  and  vests  in  pos- 
session on  the  death  of  the  first  taker,  without  issue  living  at  the  time  of  his  death. 
Future  estate  may  be  limited  to  commence  in  possession  at  a  future  day  without 
reference  to  particular  estate.  Contingent  remainder  in  fee  may  be  created  on  a 
prior  remainder  in  fee  to  take  effect  in  the  event  that  the  persons  to  whom  the  first 
remainder  is  limited  die  under  the  age  of  twenty-one  years,  or  upon  any  other  con- 
tingency by  which  the  estate  of  such  persons  may  be  defeated  before  they  attain 
their  majority.  Estate  for  life  may  be  created  in  a  term  for  }'ears,  and  a  remainder 
limited  thereon.  Freehold  remainder,  vested  or  contingent,  may  be  created  expec- 
tant irpon  the  determination  of  a  term  for  years.  Fee  may  be  limited  upon  a  fee 
upon  a  contingency.  Successive  estates  for  life  cannot  be  limited  except  to  persons 
in  being  at  the  creation  thereof.  No  remainder  can  be  created  upon  successive 
estates  for  life  unless  such  remainder  is  in  fee  ;  nor  can  a  remainder  be  created 
upon  such  estate  in  a  term  for  years  unless  it  is  for  the  whole  residue  of  such  term. 
Contingent  remainder  cannot  be  created  in  a  term  for  years  unless  the  remainder 
umst  vest  in  interest  during  the  continuation  or  at  the  termination  of  lives  in  being 
at  the  creation  of  such  remainder.  Estate  for  life  cannot  be  limited  as  a  remainder 
on  a  terra  of  years,  except  to  a  person  in  being  at  the  creation  of  such  estate.  Re- 
mainder may  take  effect  in  derogation  of  the  preceding  estate.  Such  remainders 
deemed  conditional  limitations.     Civil  Code,  1899,  §  764  et  seq. 

Colorado.  —  Posthumous  children  take  remainders  as  if  born  during  the  lives  of 
their  parents.     Mills,  Annot.  Stat.  1891,  §  434. 

Georgia.  —  No  particular  estate  necessar\',  and  destruction  of  the  particular 
estate  will  not  defeat  the  remainder.  Remainder  may  be  created  for  persons  not  in 
being,  and  if  a  vested  remainder,  it  opens  to  take  in  all  persons  within  the  descrip- 
tion coming  into  being  up  to  the  time  of  enjoyment  commencing.  Code,  1895, 
§  3098  et  seq. 

Idaho.  —  The  provisions  in   this  State  are   the   same  as  those  in  California, 

1  2  Bl.  Com.  171;  2  Cruise,  Dig.  315;  Fearne,  Cont.  Rem.  325;  "Wms.  Real 
Prop.  222,  237. 

2  Wms.  Real  Prop.  236  ;  Stat.  8  &  9  Vict.  106.    See  accompanying  note. 


HOW   DEFEATED.  655 

omitting  tliose  as  to  estates  for  life  in  terms  for  years,  freehold  remainders  expectant 
upon  terms  for  years,  and  fees  limited  ujion  fees.     Rev.  Stat.  1887,  §  2850  et  seq. 

Illinois.  —  Posthumous  children  take  remainders  as  if  born  during  the  lives  of 
their  parents.     Kev.  Stat.  1899,  c.  30,  §  14. 

Indiana.  —  Estates,  real  and  personal,  may  be  created  to  commence  at  a  future 
day;  estate  for  life  may  be  created  in  a  term  for  years,  with  or  without  a  particular 
estate,  and  a  remainder  limited  thereon ;  and  a  remainder,  vested  or  contingent, 
may  be  created,  expectant  upon  a  term  for  years.  Contingent  remainder  may  take 
effect  in  derogation  of  the  preceding  estate.     Rev.  Stat.  1894,  §  3379  et  seq. 

Iowa.  —  Estates  may  be  created  to  commence  at  a  future  day.  Code,  1897, 
§  2917. 

Kentucky. — No  contingent  remainder  fails  for  want  of  a  particular  estate  to 
support  it,  nor  is  it  affected  by  any  disposition  of  the  particular  estate.  Stat. 
1894,  §§  2346,  2347. 

Maine.  —  Vested  remainder  in  tail  expectant  on  a  life  estate  may  be  barred  by 
joint  deed  of  tenant  and  remainder-man.  Contingent  remainder  alienable  subject  to 
the  contingenc}'.  No  expectant  estate  can  be  barred  by  the  act  of  the  owner  of  the 
precedent  estate  or  by  its  destruction,  except  as  heretofore  stated.  Rev.  Stat.  1883, 
c.  73,  §§  3,  4,  5. 

Massachusetts. — The  provisions  are  the  same  as  those  of  Maine.  Pub.  Stat. 
1882,  c.  126,  §§  2,  7,  8. 

Michigan.  —  When  a  remainder  is  limited  upon  any  estate  which  would  have 
been  a  fee-tail  prior  to  the  abolishment  of  that  estate,  such  remainder  shall  be  valid 
as  a  contingent  limitation  upon  a  fee,  and  shall  vest  in  possession,  on  the  death  of 
the  first  taker  without  issue  living  at  the  time  of  such  death.  Contingent  remainder 
in  fee  may  be  created  on  a  prior  remainder  in  fee  to  take  effect  in  the  event  that  the 
persons  to  whom  tiie  first  remainder  is  limited  shall  die  under  the  age  of  twenty-one, 
or  upon  any  other  contingency  by  which  the  estate  of  such  persons  may  be  deter- 
mined before  they  attain  their  full  age.  Successive  estates  for  life  shall  not  be 
limited  unless  to  persons  in  being  at  the  creation  thereof,  and  when  a  remainder 
shall  be  limited  on  more  than  two  successive  estates  for  life,  all  the  life-estates 
subsequent  to  those  of  the  two  persons  first  entitled  thereto,  shall  be  void,  and  the 
remainder  shall  take  effect  as  if  no  other  life-estate  had  been  created.  No  re- 
mainder shall  be  created  upon  an  estate  for  the  life  of  any  other  person  than  the 
grantee  or  devisee,  unless  such  remainder  be  in  fee ;  nor  shall  any  remainder  be 
created  upon  such  an  estate  in  a  term  for  years,  unless  it  be  for  the  whole  residue 
of  such  term.  Remainder  expectant  upon  the  lives  of  more  than  two  i)ersons  takes 
effect  upon  the  death  of  the  two  persons  first  named.  Contingent  remainder  shall 
not  be  created  on  a  term  for  years,  unless  the  nature  of  the  contingency  be  such 
that  the  remainder  must  vest  during  the  continuance  of  not  more  than  two  lives  in 
being  at  the  creation  of  such  remainder,  or  upon  the  termination  thereof.  No 
estate  for  life  shall  be  limited  as  a  remainder  on  a  term  for  years  except  to  a  person 
in  being  at  the  creation  thereof.  When  a  remainder  is  limited  to  take  effect  on  the 
death  of  any  person  without  heirs  or  heirs  of  his  body,  or  without  issue,  the  word 
"heirs"  or  "issue"  means  heirs  or  issue  living  at  the  death  of  the  person  named 
as  ancestor.  Estate  for  life  may  be  created  in  a  term  for  years,  and  a  remainder 
limited  thereou.  No  future  estate,  otherwise  valid,  shall  be  void  on  the  ground  of 
the  probability  or  improbability  of  the  contingency  on  which  it  is  limited.  Contin- 
gent remainder  may  take  effect  in  derogation  of  the  preceding  estate,  and  such 
remainder  is  construed  as  a  conditional  limitation.     Posthumous  children  take  as 


556  CONTINGENT   REMAINDERS. 

if  born  in  the  lifetime  of  their  parents,  lleniainder  cannot  be  barred  by  the  act  of 
the  owner  of  the  intermediate  estate  nor  by  any  destruction  of  such  estate,  except 
by  tlie  means  provided  by  the  party  who  created  the  estate.  Contingent  remain- 
ders are  not  defeated  by  the  termination  of  the  particular  estate  before  the  happen- 
ing of  the  contingency.  E.xpectant  estates  are  descendible,  devisable,  and  alienable 
in  the  same  manner  as  estates  in  possession.  Howell,  Annot.  Stat.  1882,  §  5520 
et  seq. 

Minnesota.  —  The  provisions  are  the  same  as  those  of  Michigan.  Stat.  1891, 
§  3964  et  seq. 

Mississippi.  —  Posthumous  children  take  as  if  born  in  the  lifetime  of  the  parent 
although  no  estate  have  been  conveyed  to  support  the  contingent  remainder.  Con- 
tingent limitation  by  conveyance  or  will  made  to  depend  upon  the  dying  of  any 
person  without  heirs  or  heirs  of  the  body,  or  without  issue  or  issue  of  the  body,  or 
without  children,  or  offspring,  or  descendant,  or  other  relative,  is  construed  as  a 
limitation,  to  take  effect  when  such  person  shall  die  not  having  such  heir,  or  issue, 
or  child,  or  descendant,  or  other  relative,  living  at  the  time  of  his  death  or  born 
within  ten  months  after,  unless  the  intention  of  the  instrument  be  plainly  otherwise. 
Annot.  Code,  1892,  §§  2446,  2447. 

Missouri. — The  provisions  are  the  same  as  in  Mississippi.  Rev.  Stat.  1899, 
§§  4593,  4596. 

Montana. — The  provisions  are  the  same  as  those  of  Michigan,  except  that 
remainders  may  be  limited  expectant  upon  the  termination  of  any  number  of  lives 
in  being  or  of  any  number  of  successive  life-estates  to  persons  in  being.  Stat.  1895, 
Div.  2,  pt.  2,  §  1216  et  seq. 

Nebraska.  —  Estates  may  be  created  to  commence  at  a  future  day.  Comp.  Stat. 
1899,  §  4146. 

Nevada.  —  The  provisions  are  the  same  as  those  of  Mississippi.  Gen.  Stat.  1885, 
§§  2613,  2614. 

New  Jersey.  —  Contingent  remainders  are  alienable  and  devisable.  Gen.  Stat. 
1895,  p.  881,  §  138. 

New  York.  —  The  provisions  are  the  same  as  those  of  Michigan.  Rev.  Stat. 
(9th  ed.)  p.  n%^  etseq. 

North  Dakota.  —  Future  interest  is  not  void  merely  because  of  the  improbability 
of  the  contingency  on  which  it  is  limited.  Posthumous  children  take  as  if  living 
upon  the  death  of  the  parent.  Future  interests  pass  by  succession,  will,  and 
transfer  in  the  same  manner  as  present  interests.  Rev.  Codes,  1895,  §  3296  et  seq. 
A  future  estate  may  be  limited  to  commence  in  possession  at  a  future  day,  either 
with  or  without  a  precedent  estate.  §  3331.  Further  provisions  are  the  same  as 
those  of  California  except  as  to  the  limitation  of  a  fee  upon  a  fee-tail.     §  3334  et  seq. 

Oklahoma. — The  provisions  are  the  same  as  those  of  California.  Stat.  1893, 
§  3709  et  seq. 

Rhode  Island.  —  Remainder  after  an  estate  tail  may  be  barred  by  the  deed  of 
the  tenant  in  tail.  Contingent  interests  may  be  disposed  of  by  conveyance  or  will. 
Gen.  Laws,  1896,  c.  201,  §§  14,  23. 

South  Carolina.  —  Remainder  not  to  be  defeated  by  feoffment  with  livery  of 
seisin.  Posthumous  child  takes  as  if  living  at  death  of  parent.  1  Rev.  Stat. 
1893,  c.  eQ. 

South  Dakota.  —  The  provisions  are  the  same  as  those  of  California.  Annot. 
Stat.  1899,  §  3657  et  seq. 

Tennessee.  —  Every  contingent  limitation  by  deed  or  will  made  to  depend  on  the 


HOW    DEFEATED.  557 

dying  of  any  person  without  heirs,  or  heirs  of  tlie  body,  or  without  issue  of  the 
body,  or  without  children,  or  offspring,  or  descendants,  or  other  relative,  shall  be  a 
limitation  to  take  effect  when  such  person  dies  without  heir,  issue,  child,  offspring, 
or  descendants,  or  other  relative  living  at  the  time  of  his  death  or  born  to  him 
within  ten  months  thereafter  unless  the  intention  of  the  instrument  be  plainly 
otherwise.  Contingent  remainders  may  be  limited  upon  estates  for  years.  Code, 
§§  3675,  3676. 

Texas.  —  Remainder  not  defeated  by  alienation  of  the  particular  estate,  either 
by  deed  or  will,  or  by  the  union  of  such  particular  estate  with  the  inheritance  by 
purchase  or  descent.     Batts'  Annot.  Civ.  Stat.  1897,  §  626. 

Virginia.  —  A  contingent  remainder  shall  in  no  case  fail  for  want  of  a  particular 
estate  to  support  it.     Further  provision  as  in  Texas.     Code,  1887,  §§  2424,  2425. 

West  Virginia.  —  The  provisions  are  the  same  as  those  in  Virginia.  Code, 
1899,  c.  71,  §§  12,  13. 

Wisconsin.  —  The  provisions  are  the  same  as  those  of  New  York.  Annot.  Stat. 
1889,  §  2040  et  seq. 


558  CONTINGENT   REMAINDERS. 


CHAPTER   LXX. 

CONTINGENT   REMAINDERS  —  RULE   IN   SHELLEY'S   CASE. 

§  1601.  The  rule  stated. 

1602.  Origin  of  the  rule. 

1603.  Theory  of  the  rule. 

1604.  Rule  applies  when  same  instrument  limits  freehold  to  ancestor,  remainder 

to  heirs. 

1605.  Limitations  by  separate  instruments  not  within  rule. 

1606.  Limitation  to  "heirs  of  A." 

1607.  First  estate  must  be  a  freehold. 

1608.  Remainder  must  be  to  heirs  of  first  taker. 

1609.  Rule  applies  notwithstanding  intermediate  estates. 

1610.  Rule  applies  to  equitable  and  legal  estates. 

1611.  Rule  applies  where  both  estates  are  legal. 

1612.  First  taker  may  convey  the  fee. 

1613.  Rule  applies  contrary  to  expressed  intention. 

1614.  Cases  to  which  the  rule  cabnot  apply. 

1615.  Test  as  to  what  cases  are  within  the  rule. 

1616.  Limitations  which  are  not  within  the  rule. 
Note.  Statutory  provisions  affecting  the  rule. 

§  1601.  The  Rule  stated.  — There  remains  to  be  considered  a 
pretty  large  class  of  estates,  which,  in  England  and  in  many 
of  the  United  States,  come  within  what  is  called  the  rule  in 
Shelley's  Case,  the  peculiarity  of  which  is,  that,  while  in  form  the 
estate  has  two  parts,  a  particular  one  for  life,  with  a  contingent 
remainder  to  the  heirs  of  the  tenant  who  takes  the  particular 
estate,  it  is  constructively  a  single  estate  of  inheritance  in  the 
first  taker.  The  form  of  limitation  of  such  estates  is  to  the 
grantee  or  devisee  for  life,  and  after  his  death  to  his  heirs  or 
the  heirs  of  his  body,  either  mediately  or  immediately,  both 
estates  being  created  by  the  same  deed  or  devise.  This  rule, 
instead  of  regarding  a  part  of  the  entire  estate  as  in  the  ances- 
tor, and  a  part  in  his  heirs,  considers  the  entire  estate  as  being 
in  him  alone ;  that  the  intent  in  creating  it  was  to  have  it  go 
in  a  certain  line  of   succession,  and,  if   the  first  taker   died 


RULE  IN  Shelley's  case.  559 

intestate,  his  heirs  should  take  by  descent  from  him,  and  not 
as  purchasers  under  the  original  limitation.^ 

§  1602.  Origin  of  the  Rule.  —  It  will  be  seen  hereafter,  that, 
by  the  statutes  of  several  States,  such  a  limitation  as  is  above 
described  is  declared  to  be  what  it  purports  to  be  in  terms,  — 
a  contingent  remainder  in  the  heirs.  But  from  a  period  in  the 
history  of  the  English  law  anterior  to  that  when  contingent 
remainders  were  first  recognized  as  legal  interests,  and  too  early 
to  fix  its  precise  date,  it  has  been  a  rule  of  the  common  law,  not 
merely  of  construction,  but  of  imperative  obligation,  that  if  an 
estate  is  limited  to  one  for  life,  and  by  the  same  gift  or  convey- 
ance it  is  limited  to  his  heirs  in  fee  or  in  tail, the  word  "heirs" 
is  a  word  of  limitation  of  his,  the  first  taker's,  estate,  and  that 
heirs  under  such  a  deed  or  gift  would  have  no  greater  interest 
or  right  than  the  heirs  of  any  grantee  in  fee  where  an  estate  is 
given  generally  to  him  and  his  heirs.^ 

§  1603.  Theory  of  the  Rule.  —  This  rule  takes  its  name  from 
an  early  case  reported  in  Coke's  Reports,  as  Shelley's,  in  which 
it  was  first  authoritatively  and  formally  declared,  though  it  was 
then  an  ancient  dogma  of  common  law.^  Various  theories 
have  been  suggested  as  furnishing  a  reason  for  this  rule  in  the 
first  place.  One  is,  that  it  was  adopted  in  order  to  prevent  the 
lord  from  being  deprived  of  his  wardship  by  allowing  the  heir 
to  take  as  purchaser  instead  of  by  descent.*  Another  traces  it 
to  the  same  principle  which  applied  originally  to  "  heii'S  "  when 
used  in  a  conveyance.  It  was  at  first  understood,  that,  in  case 
of  such  a  limitation,  the  estate  was  in  fact  to  go  to  the  heirs  of 
the  grantee  named  ;  that  though  he  had  a  right  to  enjoy  it 
during  life,  he  had  no  right  to  cut  off  the  descent  by  alienation  ; 
and  that  when,  therefore,  the  word  "  heirs,"  in  the  progress  of 
estates,  came  to  be  regarded  as  a  mere  term  of  limitation,  giv- 
ing the  grantee  a  complete  ownership,  vvith  an  unrestricted 
right  of  alienation,  it  was  not  easy  to  distinguish  between  a 

1  Tud.  Lead.  Cas.  482;  Wms.  Real  Prop.  211.  The  word  "at"  is  as  efficient 
as  "after"  to  create  an  estate-tail.     Pierce  y.  Pierce,  14  R.  L  514. 

2  Wms.  Real  Prop.  218. 

8  Shellej's  case,  1  Rep.  94  ;  Wms.  Eeal  Prop.  209.  Judge  Blackstone  traces  it 
to  a  case  determined  in  the  18th  Edw.  IL  A.  D.  1325  (see  Hargr.  Law  Tracts,  568) ; 
whereas  Shelley's  case  was  not  decided  till  23  Eliz.  A.  D.  1581. 

*  Watk.  Conv.  106,  Coote's  note. 


560  CONTINGENT   REMAINDERS. 

case  where  the  limitation  was  to  one  and  his  heirs,  and  that 
where  it  was  to  him  for  life,  and,  after  his  death,  to  his  heirs, 
the  effect  at  common  law  being  the  same  in  both  forms  of 
limitation.!  Whether,  after  a  limitation  to  one  for  life,  the 
limitation  over  was  to  his  heirs  generally,  or  to  the  heirs  of  his 
body,  merely  affected  the  form  by  which  he  could  alienate  the 
land,  in  the  one  case  by  feoffment  in  the  other  by  recovery .2 

§  1604.  Rule  applies  when  same  Instrument  limits  Freehold  to 
Ancestor,  Remainder  to  Heirs.  —  The  reason  thus  presented  de- 
fines the  limits  of  the  rule,  and  furnishes  a  clew  to  determine 
whether  any  given  case  is  within  the  rule  or  not.  As  a  general 
proposition,  wherever  there  is  a  freehold  in  an  ancestor,  and 
a  remainder  to  his  heirs,  limited  and  created  by  the  same 
instrument,  it  is  the  same  as  if  the  estate  had  been  limited  to 
the  ancestor  and  his  heirs.^  Thus,  where  the  devise  is  to  the 
first  taker  expressly  for  life,  with  a  limitation  to  his  heirs  of  his 
body,  it  creates  an  estate-tail  in  the  first  taker.  Nor  would  it 
make  any  difference,  that,  in  case  of  default  of  issue,  it  is  to  go 
to  a  brother,  since  the  failure  of  issue  is  not  definite,  and  it  is 
contingent  when  it  will  fail.* 

§  1605.  Limitations  by  Separate  Instruments  not  within  Rule.  — 
It  is  indispensable  that  the  limitations  should  be  by  one  and 
the  same  instrument,  though  it  would  seem  to  be  sufficient  that 
the  instrument  which  limited  the  estate  for  life  contained  a 
power  of  appointment  which  should  be  executed  to  the  heirs  of 
the  same  person.^  But  when  an  estate  for  life  only  is  given, 
followed  by  a  general  power  of  appointment,  and  on  failure  to 
appoint,  then  to  children  or  special  heirs,  the  power  to  appoint 
will  not  enlarge  the  estate  of  the  life-tenant  to  a  fee  or  fee-tail, 
and  the  children,  or  special  heirs  as  they  are  termed,  take  by 
purchase,  and  not  by  descent.  It  is  otherwise,  where,  upon 
failure  to  appoint,  the  remainder  is  to  the  "  heirs  "  of  the  life- 

1  Wms.  Real  Prop.  209-211  ;  1  Prest.  Est.  306  ;  Tud.  Lead.  Cas.  482.  See 
Hargr.  Law  Tracts,  573. 

2  Wm3.  Real  Prop.  209-211.     See  Hargr.  Law  Tracts,  564. 

8  2  Flint.  Real  Prop.  131  ;  Tad.  Lead.  Cas.  483  ;  Wms.  Real  Prop.  211  ;  Web- 
ster V.  Cooper,  14  How.  500. 

*  Ogden's  App.,  70  Penn.  St.  509  ;  King  v.  Utley,  85  N.  C.  59. 

6  Tud.  Lead.  Cas.  483;  Watk.  Conv.  107,  Coote's  note  ;  Watk.  Descents  (2d 
ed.),  236  ;  Co.  Lit.  299  b,  note  261  ;  1  Prest.  Est.  324, 


RULE  IN  SHELLEY'S  CASE.  661 

tenant.^  Where,  therefore,  one  by  deed  granted  to  his  son  an 
estate  for  life,  and  afterwards  gave  the  reversion  by  devise  to 
the  heirs,  or  the  heirs  of  the  body  of  the  son,  it  was  held,  that 
the  son  only  took  a  life-estate,  and  that  his  heirs  took  by  pur- 
chase.2  But  a  will  and  a  codicil,  it  seems,  are  considered  as 
one  instrument  in  their  effect  upon  such  a  limitation.^ 

§  1606.  Limitation  to  "  Heirs  of  A."  —  If  an  estate  be  limited 
to  the  heirs  of  A,  A  himself  takes  nothing,  and  his  heirs  take 
as  purchasers,  being  merely  designated  as  persons  by  the  term 
"  heirs."     Such  an  estate  is  not  within  the  rule.^ 

§  1607.  First  Estate  must  be  a  Freehold.  —  The  first  estate 
limited  must  be  a  freehold^  created  either  expressly  or  by  im- 
plication. In  either  form  it  will  be  sufficient.  Thus,  where  A 
covenanted  to  stand  seised  to  the  use  of  his  heirs  male,  he 
retained  by  implication  an  estate  for  life,  which,  united  with 
this  estate  to  his  heirs  male,  gave  him  a  fee-tail.^  But  a  feoff- 
ment to  the  use  of  A  for  life,  remainder  to  B,  if  A  refuses  to 
accept,  B  takes  the  estate  presently.  But  if  this  had  been  by 
way  of  covenant,  B  would  not  take  it  until  A's  death  :  the 
estate  in  the  mean  time  vests  in  the  covenantor,  because  he  had 
not  parted  with  the  possession,  and  therefore  he  will  have  the 
use.' 

§  1608.  Remainder  must  be  to  Heixs  of  First  Taker.  —  In  the 
next  place,  the  subsequent  limitation  to  the  heirs  must  be  to 
the  heirs  of  the  ancestor  who  takes  the  particular  estate. 
Thus,  where  the  estate  was  limited  to  the  wife  for  life,  re- 
mainder to  the  heirs  of  the  bodies  of  the  husband  and  wife,  the 
freehold  being  in  the  wife  alone,  the  limitation  over  would  be  a 
remainder,  and  their  heirs  would  take  as  purchasers;^  whereas, 
had  the  first  limitation  been  to  the  husband  and  wife,  with 

1  Yarnall's  App.,  70  Penn.  St.  342  ;  T)odson  v.  BaW,  60  Penn.  St.  497. 

2  Moore  v.  Parker,  1  Ld.  Raym.  37  ;  Doe  v.  Fonnereau,  Dougl.  508  ;  Co.  Lit 
299  b,  Butler's  note,  261  ;  A<lams  v.  Guerard,  29  Ga.  675. 

3  Hayes  v.  Foorde,  2  W.  Bl.  698 ;  Tud.  Lead.  Cas.  484  ;  Wms.  Real  Prop.  211, 
note. 

4  Wms.  Real  Prop.   216. 

6  2  Flint.  Real  Prop.  130. 

6  Pibus  V.  Mitford,  1  Ventr.  372  ;  Watk.  Descents  (2d  ed.),  242  ;  Tud.  Lead. 
Cas.  486. 

■7  Pibus  V.  Mitford,  2  Lev.  77. 
8  Watk.  Descents  (2d  ed.),  241. 
VOL.  II.  —  36 


562  CONTINGENT   REMAINDERS. 

remainder  to  the  heirs  of  their  bodies,  the  heirs  would  take  by 
descent.^  And  an  estate  to  A,  B,  and  C,  for  their  respective 
lives,  and  after  their  deaths  to  the  next  lawful  heir  of  A,  created 
a  fee-simple  in  A  ;  and  the  courts,  in  the  case  supposed,  point 
out  the  distinction  between  this  and  Archer's  case,  where  the 
estate  was  to  A  for  life,  remainder  to  his  heir  and  the  heirs 
male  of  his  heir,  where  A  took  an  estate  for  life  only,  and  the 
heir  took  a  contingent  remainder  as  purchaser.^ 

§  1609.  Rule  applies  not-withstanding  Intermediate  Estates. 
—  But  it  is  not  necessary  that  the  limitation  to  the  heirs 
should  be  enjoyed  immediately  upon  the  death  of  the  first 
taker.  There  may  be  any  number  of  intermediate  estates 
interposed  between  that  of  the  first  taker  and  the  enjoyment 
of  the  estate  in  possession  which  is  limited  to  the  heirs.  Nor 
does  the  length  of  these  affect  the  limitation,  if  no  one  of 
them  is  a  fee-simple.^  Nor  will  it  have  any  effect  to  exclude 
the  rule,  that  the  remainder  cannot  by  possibility  vest  as  a 
remainder  in  the  lifetime  of  the  ancestor,  as  where  the  limita- 
tion was  to  A  and  B  and  the  heirs  of  him  who  should  die  first. 
So  if  the  remainder  be  limited  on  a  contingency  which  does 
not  happen  in  the  ancestor's  lifetime,  nevertheless  the  heirs 
will  take  by  descent.*  The  mere  circumstance  that  the  re- 
mainder was  contingent  does  not  prevent  the  operation  of  the 
rule  the  moment  the  remainder  vests.  Thus,  an  estate  limited 
to  A  for  life,  and  if  A  survives  B,  then  to  his  heirs,  would  be 
a  contingent  remainder  in  A,  depending  upon  his  surviving  B. 
If  he  does,  his  estate  becomes  at  once  vested,  and  his  term 
for  life  merges  in  the  inheritance.^ 

§  1610.  The  Rule  applies  to  Equitable  as  well  as  to  Legal 
Estates  in  the  case  of  executed  trusts.^  But  there  are  certain 
limitations  of  this  application,  and  among  them  is  the  re- 
quirement, that  the  two  estates,  the  freehold  and  the  remain- 
der, should  both  be  legal,  or  both  equitable."     But  where  one 

1  Watk.  Descents  (2d  ed.),  241  ;  Webster  v.  Cooper,  14  How.  500. 

2  Fuller  V.  Chamier,  L.  R.  2  E(i.  Cas.  682,  686  ;  Archer's  case,  1  Rep.  66  b  ; 
Hennessy  v.  Patterson,  85  N.  Y.  91. 

8  Watk.  Descents  (2d  ed.),  246  ;  Wms.  Real  Prop.  212,  213. 

*  Watk.  Conv.  107,  Coote's  note;  Watk.  Descents  (2d  ed.),  247. 

6  2  Flint.  Real  Prop.  129. 

6  Anle,  §  14.53. 

'  Watk.  Conv.  107,  Coote's  note. 


RULE  IN  Shelley's  case.  563 

is  legal,  and  the  other  equitable,  the  rule  does  not  apply,  and 
the  heirs  take  as  purchasers.  ^  And  if  the  trusts  are  execu- 
tory, such  as  arise,  for  instance,  under  a  marriage  settlement, 
they  will  not  be  held  to  come  within  the  rule  where  such  is 
not  the  intention  of  the  parties.^ 

§  1611.  The  Rule  applies  w^tiere  both  the  Estates  are  legal,  not- 
withstanding the  fact  that  a  trust  is  attached  to  one  of  them.^ 

§  1612.  First  Taker  may  convey  the  Fee.  —  As  a  consequence 
from  the  foregoing  principles,  whoever  has  a  freehold,  which, 
by  the  terms  of  the  limitation,  is  to  go  to  his  heirs,  may  alien 
the  estate,  subject  only  to  such  limitations  as  may  have  been 
created  between  his  freehold  and  the  inheritance  limited  to 
his  heirs.'*  Thus,  where  the  limitation  is  to  A  for  life,  and 
after  his  death  to  B  for  life,  and  after  his  decease  to  the 
heirs  of  A,  A  practically  has  two  estates,  — one  in  possession, 
the  other  in  remainder;  the  first  for  life,  the  other  in  fee, 
divided  by  the  estate  to  B.  And  if  B  were  to  die  in  the  life 
of  A,  the  latter's  life-estate  would  merge,  and  he  would  at 
once  become  the  unlimited  tenant  in  fee  of  the  estate. °  In- 
stead of  the  intermediate  estate  to  B  being  for  life,  it  might 
be  to  him  in  tail-male,  and,  upon  default  of  issue,  to  the  heirs 
of  A,  and  still  A  would  take  an  estate  for  life  with  a  fee- 
simple  in  remainder  expectant  upon  the  determination  of  the 
estate-tail  in  B.  So  an  estate  may  be  limited  to  A  and  the 
heirs  male  of  his  body,  and,  in  default  of  such  heirs,  to 
the  heirs  female  of  his  body,  where,  if  his  heirs  female  take 
upon  failure  of  heirs  male,  they  do  so  as  heirs  of  A,  and  not 
as  purchasers.^  The  word  "heirs,"  in  these  and  like  cases,  is 
a  word  of  limitation  of  the  estate  which  the  ancestor  takes. " 

1  Tud.  Lead.  Cas.  484  ;  Watk.  Descents  (2d  ed.),  238  ;  Silvester  v.  Wilson, 
2  T.  R.  444  ;  Doe  d.  Hallen  v.  Ironmonger,  3  East,  533  ;  Adams  v.  Adams,  6  Q.  B. 
860 ;  Ward  v.  Amory,  1  Curtis,  C.  C.  419. 

*  6  Cruise,  Dig.  307 ;  Watk.  Conv.  109,  Coote's  note ;  Jones  v.  Laughtou,  1  Eq. 
Cas.  Abr.  392  ;  ante,  §  1453. 

8  Tud.  Lead.  Cas.  484,  cites  Douglas  v.  Congreve,  1  Beav.  59  ;  s.  c.  4  Bin<^. 
N.  C.  1. 

*  Wms.  Real  Prop.  213. 

6  Wms.  Real  Prop.  212,  213. 
6  Wms.  Real  Prop.  214  ;  1  Prest.  Est.  306. 

■^  Wms.  Real  Prop.  215.  And  so  "  heirs  at  law."  Warner  v.  Sprig"-,  62 
Md.  14. 


564  CONTINGENT  REMAINDERS. 

It  would  make  no  difference  though  the  estate  of  A  were  a 
defeasible  one,  and  a  second  estate  were  limited  between  the 
estates  of  A  and  that  of  A's  heirs  to  take  effect  upon  its  being 
defeated.  Thus,  where  the  estate  was  for  life  to  A,  a  widow, 
provided  she  should  remain  unmarried,  and,  after  her  mar- 
riage, to  B  during  her  life,  and,  after  her  death,  to  her  heirs ; 
in  this  case  A  would  practically  have  a  fee-simple,  subject  only 
to  B's  remainder  dependent  upon  her  marrying  again.  She 
might  accordingly  convey  the  estate,  subject  only  to  B's  con- 
tingent interest.^ 

§  1613.  Rule  applies  contrary  to  Expressed  Intention.  — 
The  rule  is,  as  a  rule  of  the  common  law,  so  imperative,  that 
though  there  be  an  express  declaration  that  the  ancestor  shall 
only  have  a  life-estate,  it  will  not  defeat  its  union  with  the 
subsequent  limitation  to  his  heirs.^  So,  though  the  limitation 
be  accompanied  by  a  declaration  to  the  effect  that  the  heirs 
shall  take  as  purchasers,  or  is  made  to  the  heirs  of  the  first 
taker  and  their  heirs, ^  or  where  the  estate  is  to  A  for,  life, 
and,  after  his  death,  to  the  heirs  of  his  body,  to  share  as 
tenants  in  common,  or  to  be  equally  divided  between  them,  it 
comes  within  the  rule. 

§  1614.  Cases  to  which  the  Rule  cannot  apply.  —  "Heirs  of 
the  body  "  means,  in  legal  phrase,  one  person  at  a  time,  but 
includes  all  the  posterity  of  the  donee  in  succession.  The 
general  intent  when  thus  expressed  shall  not  be  defeated  by 
an  expression  of  a  particular  intent,  as  to  how  that  general 
intent  shall  be  carried  out,  if  both  cannot  take  effect.'*  But 
where  the  course  of  descent  is  added  by  the  superadded  words, 
as  where  a  limitation  is  made  to  A  for  life,  and,  after  his 
decease,  to  his  heirs,  and  their  heirs  female  of  their  bodies,  it 
becomes  requisite  that  the  heirs  take  as  purchasers,  in  order 

1  Wms.  Real  Prop.  216  ;  Tud.  Lead.  Cas.  486. 

2  Tud.  Lead.  Cas.  488  ;  Perrin  v.  Blake,  1  W.  Bl.  672  ;  Warner  v.  Sprigg,  62 
Md.  14  ;  Sheeley  v.  Neidhammer,  182  Penn.  St.  163  ;  s.  c   37  Atl.  Rep.  939. 

8  Tud.  Lead.  Cas.  489  ;  Watk.  Conv.  108,  Coote's  note  ;  Hargr.  Law  Tracts,  562  ; 
Toller  V.  Attwood,  15  Q.  B.  929. 

*  Watk.  Conv.  108,  Coote's  note  ;  Tud.  Lead.  Cas.  499  ;  Jesson  v.  Doe  d. 
Wright,  2  Bligh,  1,  overruling  Doe  d.  Strong  v.  Goffe,  11  East,  668  ;  Doe  d. 
Bagnall  v.  Harvey,  4  Barn.  &  C.  610  ;  Doebler's  App.,  64  Penn.  St.  15 ;  Kleppner 
V.  Laverty,  70  Penn.  St.  73. 


RULE   IN   SHELLEY'S   CASE.  565 

to  give  effect  to  the  limitation  to  the  heirs  female,  etc.     And 
consequently  the  rule  in  Shelley's  case  will  not  he  applicahle.^ 

§  1615.  Test  as  to  -what  Cases  are  -within  the  Rule.  —  The 
test,  as  given  by  Mr.  Ilargrave  in  such  and  similar  cases,  is, 
"whether  the  party  entailing  means  to  build  a  succession  of 
heirs  on  the  estate  of  the  tenant  for  life."  "If  he  does,  then 
he  (the  judge)  should  apply  the  rule,  even  though  the  party 
should  express  in  his  will  that  the  rule  should  not  be  applied, 
and  that  the  remainder  to  the  heirs  of  the  tenant  for  life 
should  operate  by  purchase. "  ^ 

§  1616.  Limitations  -wrhich  are  not  vyithin  the  Rule.  —  But 
where  the  limitation  of  the  remainder  is  to  a  son  or  sons,  or 
to  children  or  issue,  or  to  an  heir  or  heirs,  of  him  to  whom  the 
first  estate  for  life  is  limited,  if  the  term  heirs  is  clearly  in- 
tended as  a  descriptio  personce,  the  individual  or  persons 
thus  designated  take  as  purchasers,  and  do  not  come  within 
the  rule  under  consideration.^  If,  however,  the  terra  made 
use  of  in  the  limitation  is  "son  "  or  "child,"  and  it  is  used  in 
the  sense  of  heirs,  and  not  as  a  designatio  personce,  but  com- 
prehending a  class  to  take  by  inheritance,  it  is  to  be  taken  as 
a  term  of  limitation,  and  accordingly  brings  the  case  within 
the  rule  in  Shelley's  case.  So  it  is  with  the  word  "issue." 
The  context  in  these  cases  may  be  resorted  to,  to  get  at  the 
sense  in  which  the  term  or  terms  are  used.  And  if,  as  thus 
construed,  heirs  in  the  technical  sense  are  intended,  the  case 
would  come  within  the  rule.^  These  points,  having  been  the 
subject  of  consideration  in  several  recent  cases,  may  justify 
adding  to  what  has  been  said,  what  might  otherwise  seem  to 
be  little  more  than  a  repetition.     Thus  the  words  "child  or 

1  Tad.  Lead.  Cas.  493  ;  vide  McCullough  v.  Gliddon,  33  Ala.  208. 

2  Hargr.  Law  Tracts,  460. 

3  Tud.  Lead.  Cas.  493;  2  Flint.  Real  Prop.  ]  28  ;  Watk.  Conv.  108,  Coote's  note  ; 
Poole  V.  Poole,  3  B.  &  P.  620  ;  Cursham  v.  Newland,  2  Bing.  N.  C.  58  ;  s.  c. 
4Mees.  &  W.  101  ;  Greenwood  u.  Eothwell,  5  Man.&  G.  628  ;  Slater  v.  Dangerfield, 
15  Mees.  &  W.  263,  and  note  to  Am.  ed.  ;  Ridgeway  v.  Lanpliear,  99  Ind.  251 ; 
Abbott  V.  Jenkins,  10  Serg.  &  R.  296;  Webster  v.  Cooper,  14  How.  500;  T}der  u. 
Moore,  42  Penn.  St.  374,  388  ;  Adams  v.  Ross,  30  N.  J.  L.  512  ;  Ford  v.  Flint,  40 
Vt.  394. 

*  2  Flint.  Real  Prop.  128;  Tad.  Lead.  Cas.  496  ;  Robinson  v.  Kobinson,  1  Burr. 
38  ;  Doe  d.  Jones  v.  Davies,  4  Barn.  &  Ad.  43  ;  Shaw  v.  \Veigli,  Strange,  798  ; 
Lees  V.  Mosley,  1  Younge  &  C.  589. 


566  CONTINGENT    REMAINDERS. 

children  "  are,  in  their  usual  sense,  words  of  purchase,  and 
are  always  so  regarded,  unless  the  testator  has  unmistakably 
used  them  as  descriptive  of  the  extent  of  the  estate  given,  and 
not  to  designate  the  donees.  But  they  may  be  used  as  words 
of  limitation^  On  the  other  hand,  "heirs"  may  sometimes 
mean  the  same  as  child  or  children.  But  the  testator's  intent 
to  use  it  thus  must  be  clear,  and  something  more  than  impli- 
cation; otherwise  it  is  a  word  of  limitation.^  In  a  will,  a 
testator  may  use  the  word  "children"  as  meaning  heirs  of  the 
body ;  possibly  a  grantor  may  do  this,  but  his  intention  must 
be  clearly  shown.  Words  of  purchase  will  be  treated  as  such 
until  it  has  been  unmistakably  shown  that  the  grantor  designed 
to  use  them  in  a  different  sense. ^  In  applying  the  rule  in 
Shelley's  case,  where  the  estate  is  created  by  will,  the  words 
heirs,  and  heirs  of  the  body,  most  frequently  express  the  relation 
in  which  the  second  taker  must  stand  to  the  first.  But  any 
other  words  will  answer  quite  as  well,  such  as  next  of  kin,* 
sons,  daughters,  issue,  children,  or  descendants,  if  they  appear 
to  be  equivalent;  and  the  most  appropriate  words  will  not 
answer,  if  used  in  a  special  and  inappropriate  sense.  If, 
therefore,  the  remainder  is  to  persons  standing  in  the  relation 
of  general  or  special  heirs  of  the  tenant  for  life,  the  law 
presumes  that  they  are  to  take  as  heirs,  unless  it  unequivo- 
cally appears  that  individuals  other  than  persons  who  are  to 
take  simply  as  heirs  are  intended. °  It  declares  inexorably, 
that,  where  the  ancestor  takes  a  preceding  freehold,  by  the 
same  instrument  a  remainder  shall  not  be  limited  to  heirs, 
qua  heirs,  as  purchasers.^  A  question  of  this  kind  arose  in 
New  Jersey  in  relation  to  a  grant  which  was  to  A  for  life,  and, 

1  Haldeman  v.  Haldeman,  40  Penn.  St.  35  ;  Oy.ster  v.  Oyster,  100  Penn.  St. 
538;  Hayes,  Eeal  Estate,  Rules,  etc.,  30-35;  Belslay  v.  Eiigel,  107  111.  182; 
Stump  V.  Jordan,  54  Md.  619  ;  Bannister  v.  Bull,  16  S.  C.  220;  Halstead  v.  Hall, 
60  Md.  209. 

2  Criswell's  App.,  41  Penn.  St.  290  ;  May  v.  Ritchie,  65  Ala.  602.  See  Ma- 
cumber  V.  Bradley,  28  Conn.  445  ;  Jones  v.  Miller,  13  Ind.  337  ;  Flint  v.  Stead- 
man,  36  Vt.  210. 

8  Tyler  v.  Moore,  42  Penn.  St.  389  ;  Adams  v.  Ross,  30  N.  J.  L.  512. 
*  Terrell  v.  Cunningham,  70  Ala.  100. 

5  Price  V.  Taylor,  28  Penn.  St.  102,  103  ;  Doe  d.  Burrin  v.  Charlton,  1  Man.  & 
G.  429  ;  Clark  v.  Smith,  49  Md.  106. 

6  Doebler's  App.,  64  Penn.  St.  17  ;  Kleppner  v.  Laverty,  70  Penn.  St.  73. 


RULE  IN  Shelley's  case.  667 

at  her  death,  to  her  children.  In  the  court  below,  it  was  held 
to  be  construed  to  be  to  her  and  her  heirs  ;^  but  in  the  Court 
of  Errors  it  was  decided  to  be  a  life-estate  only  in  the  first 
taker. 2  And  it  may  be  assumed,  as  a  general  proposition, 
that  a  devise  to  children  does  not  embrace  grandchildren.^  On 
the  other  hand,  "  issue,"  in  a  will,  is  either  a  word  oi  purchase 
or  inheritance,  as  will  best  answer  the  intention  of  the  devisor. 
In  case  of  a  deed,  it  is  always  taken  as  a  word  of  purchase.* 
And  when  used  as  a  word  of  purchase  in  a  deed  or  will,  it  is 
synonymous  and  coextensive  with  the  term  "descendants," 
and  includes  all  persons  who  answer  that  description.^* 

*  Note.  —  The  rule  in  Shelley's  case  has  been  wholl)'  or  partially  abolished  in  a 
number  of  the  States.     The  following  compilation  shows  the  present   law  on  the 
subject  in  this  country,  the  States  marked  with  an  asterisk  having  abolished  the 
rule  as  to  wills  only,  the  other  States  completely  :  Alabama,   Code  1896,  §  10/!5 
California,  Civil  Code  1899,  §  779  ;  Colorado,  Statutes  1891,   ch.  29,  §  432;  Con 
nccticut,  General  Statutes  1888,  §  2953;  Kansas,*  General  Statutes  1889,  §  725G 
Kentucky,  Statutes  1894,  §  2345  ;  Maine,  Statutes  1883,  ch.  73,  §  6;  Massachu 
setts.  Public  Statutes  1882,  ch.  126,  §  4  ;  Michigan,  Statutes  1882,  ch.  213,  §  5544 
Minnesota,  Statutes  1891,  §  3984  ;  Mississippi,  Statutes  1892,   §  2446  ;  Missouri 
Revised  Statutes  1899,  §  4594  ;  Montana,  Civil  Code  1895,   §  1228  ;  New  Hamp 
shire,*  Public  Statutes  1901,  ch.  180,  §  8  ;  New  Jersey,*  General  Statutes  1895 
vol.    i.  p.  1195,  §  10  ;  New   York,  Revised  Statutes  1896,  p.   1792,   §  28  ;  North 
Dakota,   Revised  Codes   1895,   §  3343  ;  Ohio,*  Revised   Statutes   1891,    §   5968 
Oregon,*  Laws  1887,  §  3093  ;   Rhode  Island,  General  Laws  1896,  ch.  201,  §  Q 
ch.  203,   §   10  ;     South  Dakota,  Statutes  1899,   §    3664  ;    Tennessee,   Code  1897, 
§  3674  ;    Utah,*  Revised   Statutes   1898,  §§  2784,  2785  ;  Virginia,  Code  1887 
§  2423  ;   Washington,*  Codes  and  Statutes  1897,  §  4609  ;    West  Virginia,  Code 
1899,  ch.  71,  §  11  ;    Wisconsin,  Statutes  1889,  §  2052. 

1  Ross  V.  Adams,  28  N".  J.  L.  172. 

2  Adams  v.  Ross,  30  N.  J.  L.  512. 

8  Sheets  v.  Grubbs,  4  Met.  (Ky.)  341  ;  Churchill  v.  Churchill,  2  Met.  (Ky.)  466. 
But  a  devise  to  surviving  children  may  include  descendants  of  deceased  children, 
if  it  is  plainly  the  meaning  of  the  will.     Kemp  v.  Bradford,  61  Md.  330. 

4  Doe  d.  Cooper  v.  CoUis,  4  T.  R.  299  ;  Price  v.  Sisson,  13  N.  J.  Eq.  177  ;  Tay- 
lor V.  Taylor,  63  Penn.  St.  483. 

5  Price  V.  Sisson,  13  N.  J.  Eq.  177,  and  cases  there  cited  ;  Haldeman  v.  Halde- 
man,  40  Penn.  St.  35  ;  Mclntyre  v.  Mclntyre,  16  S.  C.  290.  Where  the  remainder 
was  given  by  devise  to  the  issue  and  the  heirs  and  assigns  of  the  issue,  it  was  held 
that  "  issue  "  was  a  word  of  limitation.  Carroll  i>.  Burns,  1  East.  Rep.  686.  Cf. 
Robins  v.  Quinliven,  79  Penn.  St.  333. 


568  CONTINGENT  USES. 


CHAPTER   LXXI. 

CONTINGENT   USES. 

§  1617.  Classification. 

1618.  Uses  limited  as  remainders. 

1619.  Seisin  to  sustain  contingent  remainder. 

1620.  Illustration  —  Covenant  to  stand  seised. 

1621.  Illustration  — Feoffment. 

1622.  Oi  scintilla  juris. 

1623.  Contingent  uses  treated  as  contingent  remainders. 
1621.  Resulting  freehold  will  sustain  contingent  use. 

§  1617.  Classification.  —  If  the  foregoing  chapters  upon 
uses  and  remainders  have  accomplished  what  was  proposed 
by  them,  the  reader  will  be  prepared  to  understand  the  rules 
which  apply  to  uses  which  are,  by  their  limitation,  to  arise  or 
be  executed  at  a  period  subsequent  to  their  creation.  Mr. 
Sugden  divides  these  into  three  classes,  — future  or  contingent 
uses,  springing  uses,  and  shifting  or  secondary  uses. 

§  1618.  Uses  limited  as  Remainders.  —  The  first  of  these 
are,  properly,  uses  limited  to  take  effect  as  remainders ;  ^  for 
remainders,  whether  vested  or  contingent,  may  be  liihited  by 
way  of  use  as  well  as  at  common  law;  and,  in  this  country, 
such  is  the  mode  in  which  they  are  ordinarily,  if  not  always, 
limited.^  This,  of  course,  implies  the  existence  of  a  partic- 
ular estate  upon  which  the  remainder  depends,  created  at  the 
same  time  and  by  the  same  instrument  as  the  remainder,  as 
in  case  of  remainders  created  at  common  law.  In  this  respect 
they  differ,  as  will  be  shown,  from  springing  uses  and  execu- 
tory devises;  and  courts  always  give  to  future  contingent 
estates  the  character  of  remainders,  wherever  the  terms  in 
which  they  are  limited  will  admit  of  such  a  construction. 
In  the  language  of  Lord  Mansfield,  "it  is  perfectly  clear  and 

1  Gilb.  Uses,  Sugd.  ed.  152,  n.  ;  1  Prest.  Abst.  105. 

2  4  Kent,  Com.  258. 


CONTINGENT    USES.  569 

settled,  that,  where  an  estate  can  take  effect  as  a  remainder, 
it  shall  never  be  construed  to  be  an  executory  devise  or 
springing  use."  And  it  is  stated  by  Mr.  Sugdcn,  that  "it 
appears  now  to  be  well  settled,  that  where  an  estate  is 
limited  previously  to  a  future  use,  and  the  future  use  is 
limited  by  the  way  of  remainder,  it  shall  be  subject  to  the 
rules  of  common  law,  and  consequently,  if  the  previous  estate 
is  not  sufficient  to  support  it,  shall  be  void."^ 

§  1619.  Seisin  to  sustain  Contingent  Remainder.  —  It  is 
hardly  necessary  to  repeat  here  what  these  rules  are,  except 
that  there  is  the  same  necessity  of  a  freehold  to  precede  and 
sustain  a  freehold  contingent  remainder,  when  limited  by 
the  way  of  use,  as  there  is  at  common  law.  There  must  be 
in  some  one  a  seisin,  ready  to  be  executed  to  the  use  the 
moment  the  use  vests  by  the  happening  of  the  contingency,  in 
some  known  ascertained  cestui  que  use  in  esse,  or  the  remainder 
must  fail.2 

§  1620.  Illustration  —  Covenant  to  stand  seised.  —  To  do 
this,  an  instance  may  be  assumed  of  a  contingent  remainder 
limited  by  either  of  two  different  forms  of  conveyance  which 
derive  their  validity  from  the  statute  of  uses,  covenant  to 
stand  seised,  or  feoffment  to  use.  In  the  tirst,  it  will  be 
remembered,  the  conveyance  takes  effect  without  a  transmu- 
tation of  possession  of  the  premises  conveyed.  In  the  other, 
such  a  transmutation  takes  place.  Suppose,  then,  a  person 
covenants  to  stand  seised  to  the  use  of  A  for  life,  remainder 
to  his  first  and  other  sons  in  tail,  while  he  has  no  son,  re- 
mainder to  B  in  tail,  remainder  to  the  covenantor  in  fee. 
Keeping  in  mind  the  rule  that  there  can  be  no  use  upon  a 
use,  it  is  not  difficult  to  discover  in  these  limitations  all  the 
requisite  elements  for  giving  effect  to  the  several  estates 
thereby  created.  The  seisin,  being  in  the  covenantor,  is  in 
the  first  place  executed  in  A,  the  tenant  for  life  to  whom  the 
first  use  is  limited ;  and  as  B  is  a  known  person  in  esse,  the 
use  in  him,  as  a  remainder,  is  vested  and  executed,  whereby 

1  Goodtitle  v.  Billington,  Dougl.  758  ;  Gilb.  Uses,  Sugd.  ed.  165,  n.  ;  Co.  Lit. 
217  ;  Adams  v.  Savage,  2  Ld.  Raym.  854  ;  Fearne,  Cont.  Rem.  284,  and  Butler's 
note  ;  2  Sliarsw.  Bl.  Com.  175,  note  for  American  cases  ;  Burt.  Real  Prop.  §  797; 
1  Prest.  Abst.  108  ;  Wilson,  Uses,  47. 

2  Gilb.  Uses,  Siigd.  cd.  167,  n.,  286. 


670  CONTINGENT   USES. 

both  A  and  B  have  a  legal  estate  in  them  by  force  of  the 
statute,  —  the  one  in  possession,  the  other  in  remainder. 
But  as  the  seisin  in  A  cannot  serve  the  use  in  the  son  of  A, 
to  whom  the  contingent  remainder  by  way  of  use  is  limited, 
so  as  to  give  hira  a  legal  estate  in  remainder  when  he  shall 
come  171  esse,  such  seisin  is  to  be  sought  elsewhere,  and  is 
found  in  the  covenantor  himself,  in  whom  the  seisin  origi- 
nally was,  and  who  has  the  reversion  in  fee  of  the  legal 
estate.  1 

§1621.  Illustration  —  FeofiFment.  —  To  illustrate  the  appli- 
cation of  the  principle  requiring  a  seisin  to  be  in  some  one  to 
serve  the  use  to  cases  of  the  creation  by  way  of  use  of  a  con- 
tingent remainder  by  a  feoffment  to  use,  lands  were  conveyed 
to  one  to  the  use  of  A  for  life,  remainder  to  his  first  and  other 
sons  in  tail,  he  then  having  no  son,  remainder  to  B  in  fee. 
The  use,  as  in  the  preceding  case,  became  executed  in  A  and 
B,  and  the  use  to  B  was  a  vested  remainder  for  the  reasons 
before  stated.  But  when  the  question  was  made  as  to  the 
seisin  which  was  to  support  the  contingent  remainder  in  the 
son  of  A,  and  to  be  executed  and  become,  with  the  use  when 
vested,  a  legal  estate  in  him,  the  difficulty  was  to  ascertain  the 
person  in  whom  it  was  to  be  found.  It  was  said  not  to  be  in 
the  feoffor,  for  he  parted  with  his  seisin  when  he  made  the 
feoffment;  it  was  said  not  to  be  in  the  feoffee,  because  the 
statute  at  once  took  the  seisin  from  him  and  united  it  with 
the  use  in  A ;  and  it  could  not  be  in  A,  for,  as  it  had  become 
united  with  his  use  as  cestui  que  use  for  life,  a  use  could  not 
be  limited  upon  a  use  in  favor  of  the  contingent  remainder- 
man.'^ 

§  1622.  Of  Scintilla  Juris.  —  A  vast  amount  of  speculation 
and  ingenious  subtlety  has  been  expended  by  judges  and 
writers  to  get  at  some  clew  by  which  to  reconcile  and  explain 
this  seeming  legal  solecism  of  a  seisin  which  no  one  can  find, 
though  existing  somewhere,  and  both  operative  and  efficient. 
By  some  the  seisin  was  thought  to  be  in  a  state  of  suspended 
animation,  or,  in  technical  phrase,  that  it  was  in  nubibus, 
waiting  for  the  occasion  to  arise  when  it  should  become  active, 

1  3  Prest.  Conv.  400. 

2  Gilb.  Uses,  Sugd.  ed.  293-296. 


CONTINGENT   USES.  571 

in  order  to  give  effect  to  the  limitations  which  depended  upon 
it.  Others  thought,  that  although  the  statute  drew  out  of  the 
feoffees  the  seisin  which  passed  to  them  by  the  feoffment,  and 
executed  it  with  the  use  in  the  first  taker  of  the  life-estate, 
enough  of  seisin  was  left  in  him  to  serve  the  future  contingent 
uses  as  they  arose.  To  this  shadowy  something  they  gave 
the  name  of  scintilla  juris, —  a  topic  which  fills  an  important 
place  in  the  early  doctrine  of  future  contingent  estates.  ^  A 
more  rational  view  is  taken  of  this  subject  by  modern  writers, 
especially  Mr.  Sugden  and  Mr.  Hayes,  whose  notions  are 
approved  by  Chancellor  Kent  and  Mr.  Coventry.  The  lan- 
guage of  the  former  is:  "The  true  construction  of  the  statute 
appears  to  be,  that  upon  a  conveyance  to  uses  operating  by 
transmutation  of  possession,  immediately  after  the  first  estate 
is  executed,  the  releasees  (feoffees)  to  uses  are  divested  of  the 
whole  estate;  the  estates  limited  previously  to  the  contingent 
uses  take  effect  as  legal  estates;  the  contingent  uses  take 
effect  as  they  arise,  by  force  of  and  relation  to  the  seisin  of 
the  releasees  (feoffees)  under  the  deed ;  and  any  vested  re- 
mainders over  take  effect  according  to  the  deed,  subject  to 
open  and  let  in  the  contingent  uses."  This,  if  established, 
would  overthrow  the  fiction  of  scintilla  juris,  and  with  it  the 
necessity  of  an  actual  entry  to  revive  contingent  uses,  and 
would,  in  many  other  respects,  place  contingent  uses  on  the 
footing  of  contingent  remainders. ^  Mr.  Hayes  uses  this  lan- 
guage: "This  scintilla  is  a  thing  of  which  neither  the  statute 
nor  the  common  law  affords  us  an  idea.  It  appears  to  be  an 
invention  to  get  rid  of  an  assumption."  "But  though  we 
may  be  at  a  loss  to  discover  how  the  seisin  can  return,  much 
less  partially  return,  to  the  feoffees,  etc.,  for  the  purpose  of 
serving  a  contingent  use,  there  is  no  difhciilty  in  supposing 
it  may  retain  the  impression  of  that  use,  and  be  transferred, 
subject  to  all  the  confidences  which  attached  upon  it  during 
its  momentary  residence  in  the  feoffees.  The  seisin  is  pres- 
ently executed  in  the  persons  in  esse  to  receive  it,  not  subject 

1  Brent's  case,  Dyer,  340  ;  Chudloigh's  case,  1  Rep.  120  ;  Sugd.  Pow.  20-48  ; 
4  Kent,  Com.  238-247  ;  Gilb.  Uses,  Sugd.  ed.  296,  note. 

2  Gilb.  Use.s,  Sugd.  ed.  297,  n.  ;  4  Kent,  Com.  244 ;  Watk.  Conv.  244,  Coven- 
try's  note. 


572  CONTINGENT   USES. 

to  a  possibility  of  reverting  to  the  source  from  which  it  was 
derived,  to  be  again  attracted  thence,  but  with  a  capacity, 
acquired  in  its  passage  from  the  feoffees,  of  transmission 
through  all  the  contingent  uses.  Thus  the  contingent  uses, 
when  they  arise,  draw  their  legal  clothings  from  the  vested 
uses,  which,  in  supplying  the  call,  merely  obey  the  original 
impulse  communicated  to  the  common  seisin,  and  fulfil  the 
condition  of  their  vesting.  "^  The  chief  difficulty  in  under- 
taking to  explain  a  matter  so  abstract  as  this  must  necessarily 
be,  is  to  find  terms  or  analogies  which  are  competent  to  convey 
a  definite  idea  to  the  reader.  But  it  is  hoped  that  the  fore- 
going extracts  will  serve  for  a  matter  of  so  little  practical 
moment  as  this  must  necessarily  be. 

§  1623.  Contingent  Uses  treated  as  Contingent  Remainders. 
—  Mr.  Sugden  affirms  that  "future  or  contingent  uses  are 
placed  on  exactly  the  same  footing  with  contingent  remain- 
ders. "^  It  will  therefore  be  unnecessary  to  dwell  further 
upon  this  part  of  the  subject  than  merely  to  repeat  that  there 
must  be  a  particular  estate  of  freehold  to  support  a  contingent 
freehold  remainder  by  the  way  of  use,  which  remainder  must 
vest  and  take  effect,  at  the  farthest,  at  the  instant  of  the 
determination  of  the  particular  estate.^  Consequently,  if  the 
previous  estate  is  not  sufficient  to  support  it,  such  remainder 
will  be  void.  Thus,  where  there  was  a  limitation  to  trustees 
or  feoffees  in  fee  to  the  use  of  A  for  ninety-nine  years,  if  he 
so  long  lived,  remainder  to  the  use  of  the  heirs  male  of  B  in 
tail,  it  was  held  to  be  a  void  remainder,  as  the  preceding 
estate  in  A  was  not  a  freehold.*  In  the  case  of  State  v. 
Trask,  a  deed  was  made,  to  certain  individuals  who  had  sub- 
scribed a  fund  for  the  erection  of  a  court-house,  of  a  parcel 
of  land  to  be  occupied  and  improved  for  that  purpose,  if  the 
county  would  accept  it  as  the  site  of  the  court-house ;  otherwise 
to  be  and  remain  in  the  custody  of  the  grantees  for  their 
mutual   benefit.     The  court  held  that  the  grantees  took  the 

1  Hayes,  Real  Est.  166  ;  Fearne,  Cont.  Rem.  295,  and  Butler's  note  ;  Walk. 
Conv.  244,  n.     See  also  Cornish,  Uses,  137-140. 

2  Gilb.  Uses,  Sugd.  ed.  177,  n. 

8  Gilb.  Uses,  Sugd.  ed.  164,  16.5,  n.  ;  2  Cruise,  Dig.  261. 
*  Adams  V.  Savage,  Salk.  679  ;  s.  c.  2  Ld.  Raym.  854  ;  Wilson,  Uses,  7  ;  Gilb. 
Uses,  Sugd.  ed.  167,  n. 


CONTINGENT   USES.  573 

estate  in  trust,  in  the  first  instance,  for  the  public;  and,  in 
case  that  use  failed,  then,  and  upon  that  contingency,  to  the 
use  of  themselves,  etc.  "It  is  not,"  say  they,  "the  case  of  a 
use  upon  a  use,  but  rather  a  case  of  contingent  or  alternative 
uses,  and  one  of  very  frequent  occurrence  in  the  law."  And 
although  this  case  is  cited  here  as  being  sufficiently  related 
to  the  class  of  contingent  uses,  it  is  obvious,  that,  if  the  first 
limitation  took  effect  at  all,  the  second  could  only  do  so  as  a 
shifting  use.^ 

§  1624.  Resulting  Freehold  vrill  sustain  Contingent  Use.  —  It 
will  be  sufficient  if  this  prior  estate  of  freehold  is  one  which 
results  to  the  grantor,  if  it  be  by  the  same  instrument  which 
created  the  remainder.  And  if  the  remainder  be  limited  by 
way  of  use  to  several  persons,  and  one  of  them  become  capable 
of  taking  before  another,  it  will  vest  in  the  person  first  be- 
coming thus  capable,  subject  to  be  divested,  as  to  the  propor- 
tion of  the  persons  afterwards  becoming  capable,  before  the 
determination  of  the  particular  estate.  And  notwithstand- 
ing the  different  times  of  vesting,  they  will  take  jointly. ^ 

1  State  V.  Trask,  6  Vt.  355,  363. 

^  2  Cruise,  Dig.  261  ;  Davies  v.  Speed,  Salk.  675  ;  Sussex  v.  Temple,  1  Ld. 
Raym.  311;  Dingley  i>.  Dingley,  5  Mass.  535;  Nichols  v.  Deuny,  37  Miss.  59 ; 
Carroll  v.  Hancock,  3  Jones  (N.  C),  471. 


574  SPRINGING    USES. 


CHAPTER   LXXII. 

SPRINGING   USES. 

§  1625.  Definition. 

1626.  May  be  certain  or  contingent. 

1627.  No  particular  estate  re(^uired. 

1628.  How  such  uses  arise  under  the  statute  of  uses, 

1629.  Kesemblance  to  shifting  use —  Seisin. 

1630.  Must  not  depend  on  prior  estate. 

1631.  Answer  to  executory  devises. 

1632.  Future  uses  always  construed  as  remainders  if  possible. 

§  1625.  Definition.  —  A  springing  use  is  one  limited  to  arise 
on  a  future  event  where  no  preceding  use  is  limited,  and 
which  does  not  take  effect  in  derogation  of  an}'  other  interest 
than  that  which  results  to  the  grantor,  or  remains  in  him  in 
the  mean  time.^  In  the  words  of  Lord  St.  Leonards,  "If  the 
use  be  contingent,  the  contingency  is  a  thing  resting  in  con- 
fidence ;  and  when  the  time  arrives  for  that  contingency  to 
take  effect,  the  statute  executes  that  use  or  confidence,  and 
gives  the  legal  estate.  Before  it  vests  it  is  a  limitation,  and 
it  is  a  limitation  of  the  use, "  ^ 

§  1626.  May  be  certain  or  contingent.  —  A  springing  use 
is  not  one  necessarily  contingent.  It  may  arise  upon  a  future 
event,  either  certain  or  contingent ;  ^  or,  as  defined  by  a 
writer  of  high  authority,  a  springing  use  is  "a  future  use 
either  vested  or  contingent,  limited  to  arise  without  any  pre- 
ceding limitation."* 

§  1627.  No  Particular  Estate  required.  —  It  differs,  there- 
fore, from  a  remainder,  in  not  requiring  any  other  particular 

1  Gilb.  Uses,  Sugd.  ed.  153,  n.  ;  2  Crabb,  Real  Prop.  498  ;  2  Cruise,  Dig.  263  ; 
Cornish,  Uses,  91  ;  Wilson,  Uses,  8  ;  2  Sharsw.  Bl,  Com.  334,  n.  Springing  and 
shifting  uses  are  often  spoken  of  by  legal  writers  as  synonymous  or  convertible 
terms.     They  are  not  intended  to  be  so  used  in  this  work. 

2  Egerton  v.  Brownlow,  4  H.  L.  Cas.  206. 

8  Watk.  Conv.  243,  Coventry's  note  ;  Weale  v.  Lower,  Pollexf.  65, 
*  Cornish,  Uses,  91  ;  Wilson,  Uses,  8. 


SPRINGING   USES.  675 

estate  to  sustain  it  than  the  use  resulting  to  the  one  who 
creates  it,  intermediate  between  its  creation  and  the  subse- 
quent taking  effect  of  the  springing  use.  Thus,  a  feoffment 
to  A  and  his  heirs,  to  the  use  of  B  and  his  heirs  after  his 
marriage  with  C,  is  an  instance  of  a  springing  use  raised  in 
favor  of  B,  which  is  contingent  on  his  marrying  C.^  On  the 
other  hand,  while,  upon  a  conveyance  to  A  and  his  heirs  to 
the  use  of  B  and  his  heirs  from  and  after  next  Michaelmas, 
the  use  to  B  is  a  future  and  springing  one,  it  is  not  contin- 
gent; and,  till  the  time  fixed  for  its  taking  effect,  it  results 
to  the  grantor.  2 

§  1628.  How  such  Uses  arise  under  the  Statute  of  Uses.  — 
Mutton's  case,  above  cited,  was  the  first  in  which  a  future 
and  springing  use,  without  any  preceding  estate  to  support 
it,  was  held  to  be  a  valid  limitation.  This  was  in  the  10th 
of  Elizabeth,  a.  d.  1568,  thirty-two  years  after  the  passage  of 
the  statute  of  uses.  As  the  whole  doctrine  of  such  uses 
depends  upon  the  construction  of  that  statute,  it  may  be  well 
to  recur  to  the  law  as  to  uses  as  it  stood  before  the  passage  of 
the  act.  In  treating  of  this  in  a  former  chapter,^  it  was 
shown  that  the  feoffor,  when  he  made  the  feoffment,  might 
declare  the  use  to  which  the  feoffee  should  hold  it,  either  in 
his  own  favor  or  in  favor  of  another,  and  might  in  the  latter 
case  declare  that  the  use  should  take  effect  at  a  future  time, 
in  which  case  the  use  resulted  to  himself  till  the  time  desig- 
nated. The  statute  of  uses,  among  other  things,  provided  in 
effect  that  the  cestui  que  use  should  have  the  legal  estate 
created  by  the  union  of  the  seisin  with  the  use  in  him,  "after 
such  quality,  manner,  form,  and  condition"  as  he  had  before, 
in  or  to  the  use,  etc.,  that  was  in  him.  The  courts  seized 
upon  this  expression  to  give  validity  and  effect  to  conveyances 
under  the  statute,  which  would  have  been  invalid  at  common 
law;  and  among  other  things,  because  before  the  statute  a  use 
might  have  been  created  to  take  effect  in  futuro,  though  for 
life  or  in  fee,  they  held  that  a  legal  estate  might,  by  means  of 
uses,  be  created  to  commence  infuturo,  though  it  was  a  free- 

1  Cornish,  Ushs,  9,  cites  Mutton's  case,  Dyer,  274  ;  s.  c.  F.  Moore,  376,  517. 

2  Watk.  Conv.  243,  Coventry's  note  ;  Weale  v.  Lower,  PoUexf.  65. 

3  Ante,  chap.  Iv. 


576  SPRINGING    USES. 

hold.i  The  legal  estate  in  the  end,  when  it  did  take  effect, 
was  created  by  the  seisin  being  executed  to  the  use.  But  this 
execution  was  postponed  till  the  happening  of  the  event  or 
arrival  of  the  time  prescribed  in  its  original  limitation.  This 
seisin  remained  in  the  person  creating  the  future  use  till  the 
springing  use  arose,  and  was  then  executed  to  this  use  by  the 
statute.  2 

§  1629.  Resemblance  to  Shifting  Use  —  Seisin.  —  In  one 
sense,  therefore,  in  every  such  case  a  springing  use  is  a 
shifting  one,  being  a  substitute  for,  and  determining  that 
which  has  remained  in  or  resulted  to  the  person  who  held  the 
legal  estate  when  it  was  first  created.  The  cases  above  sup- 
posed, where  the  seisin  which  is  to  serve  the  use  when  it 
springs  up  remains  in  the  person  who  creates  the  future  use, 
are  those  where  the  conveyance  is  without  transmutation  of 
possession.  And  therefore  it  is  said  a  bargain  and  sale  to  the 
use  of  J.  D.,  after  the  death  of  J.  S.  without  issue  if  he  die 
within  twenty  years,  would  be  good.  But  where  the  convey- 
ance is  by  feoffment,  lease  and  release,  and  the  like,  which 
operate  by  transmutation  of  possession,  a  springing  use  may 
be  limited  out  of  the  seisin  in  the  feoffee.  Thus,  upon  a  feoff"- 
ment  to  A  and  his  heirs,  to  the  use  of  B  and  his  heirs  at  the 
death  of  J.  S.,  the  use  in  the  mean  time  would  result  to  the 
feoffor  until  the  springing  use  took  effect  by  the  death  of 
J.  S.,  when  the  seisin  in  the  feoffee  would  serve  and  be  exe- 
cuted to  th.e  use  of  B.^ 

§  1630.  Must  not  depend  on  Prior  Estate.  —  To  create  a 
good  springing  use,  it  must  be  limited  at  once  independently 
of  any  preceding  estate,  and  not  by  way  of  remainder;  for,  if 
it  be  in  the  form  of  a  remainder,  it  shall  be  construed  a  future 
or  contingent,  and  not  a  springing  use,  and  will  be  subject  to 
the  laws  which  govern  contingent  and  vested  remainders.* 
Hale,  C.  J.,  thus  explains  the  difference  between  the  two:  A 

1  3  Report,  Eng.  Com.  Real  Prop.  27,  28 ;  Wms.  Real  Prop.  242 ;  Burt.  Real 
Prop.  §  154. 

'^  Glib.  Uses,  Sugd.  ed.  161,  n. ;  Shapleigh  v.  Pilsbury,  1  Me.  271,  290;  Wyman 
V.  Browu,  50  Me.  156  ;  Savage  v.  Lee,  90  N.  C.  320. 

3  Gilb.  Uses,  Sugd.  ed.  163,  n.  ;  Sbapleigh  v.  Pilsbury,  1  Me.  271  ;  2  Cruise, 
Dig.  264  ;  Ormoud's  Case,  Hob.  348  a ;  4  Kent,  Com.  298  ;  Jackson  v.  Dunsbagb, 
1  Johns.  Cas.  96. 

*  Gilb.  Uses,  Sugd.  ed.  176,  n. 


SPRINGING   USES.  577 

feoffment  to  the  use  of  A  for  life,  and,  after  the  death  of  A 
and  B,  to  C  in  fee,  is  a  contingent  remainder  to  C ;  but  a 
feoffment  to  the  use  of  C  in  fee,  after  the  death  of  A  and  B, 
is  a  springing  use.^ 

§  1631.  Answer  to  Executory  Devises.  —  Springing  USCS, 
and  the  same  is  true  of  shifting  uses,  answer  in  most  respects 
to  executory  devises;  the  difference  being  that  the  one  is 
created  by  deed,  the  other  by  last  will.^ 

§  1632.  Future  Uses  always  construed  as  Remainders  if 
possible.  — •  As  will  hereafter  appear  in  considering  executory 
devises,  courts  never  construe  a  limitation  by  will  to  be  an 
executory  devise,  where  it  can  take  effect  as  a  remainder,  and 
in  like  manner,  where  by  possibility  a  limitation  by  deed  by 
way  of  use  can  take  effect  as  a  remainder,  courts  never  con- 
strue it  to  be  a  springing  or  shifting  use.  Therefore,  wher- 
ever future  estates  are  so  limited  as  regularly  to  wait  for  the 
expiration  of  prior  estates,  and  then  to  take  effect,  they  are 
remainders,  and  cannot  be  deprived  of  that  character.  But 
a  use  limited  by  way  of  remainder  will  not  be  construed  into 
a  springing  use,  although  actually  void  in  its  creation,  if  not 
so  considered.^ 

1  "VVeale  v.  Lower,  Pollexf.  65  ;  2  Fearne,  Cont.  Rem.  Smith's  ed.  §  117. 

2  Fearne,  Cout.  Rem.  385,  Butler's  note.  Mr.  Wilson  published  a  "  Treatise 
on  Springing  Uses  and  other  Limitations  by  Deed  corresponding  with  Executory 
Devises,  according  to  the  Arrangement  of  Mr.  Fearne's  Essay." 

8  Carwardine  v.  Carwardine,  1  Eden,  34  ;  Cole  v.  Sewell,  4  Dru.  &  "Warr.  27; 
Goodtitle  v.  Billington,  Doug.  753  ;  Wilson,  Uses,  5  ;  Gilb.  Uses,  Sugd.  ed.  167, 
172,  176  ;  Wms.  Real  Prop.  245  ;  Tud.  Lead.  Cas.  263  ;  Southcote  v.  Stowell, 
1  Mod.  238. 


37 


578  SHIFTING    USES. 


CHAPTER  LXXIII. 

SHIFTING   USES. 

§  1633.  Definition. 

1634.  Fee  may  be  limited  after  fee  by  way  of  use. 

1635.  Illustratious. 

1636.  Example  of  a  marriage  settlement. 

1637.  The  seisin. 

1638.  Springing  and  shifting  uses  executory  interests. 

1639.  May  be  future  uses  after  prior  estate  if  the  two  are  not  coterminous. 

1640.  Conditional  limitations,  contingent  remainders,  and  conditions  at  com- 

mon law  distinguished. 

1641.  Conditional  limitations  only  arise  by  way  of  shifting  use  or  devise. 

1642.  Shifting  uses  applicable  to  chattel  estates. 

1643.  Successive  estates  in  chattel  interests. 

1644.  Qualities  and  incidents  of  future  uses. 

1645.  Restraint  of  waste  in  case  of  future  uses. 

1646.  Shifting  and  springing  uses  not  affected  by  destruction  of  prior  estate. 

1647.  Right  of  entry  sustains  contingent  remainder  by  way  of  use. 

1648.  Eflect  on  future  use  of  barring  prior  entail. 

§  1633.  Definition.  —  Shifting  or  secondary  uses  are  such 
as  take  effect  in  derogation  of  some  other  estate,  and  are 
either  limited  expressly  by  the  deed,  or  are  allowed  to  be 
created  by  some  person  named  in  the  deed.^  In  the  case 
before  cited,  Lord  St.  Leonards  uses  this  illustration :  "  What 
is  there  to  prevent  you  from  saying,  if  a  certain  event  arises, 

1  direct  you  to  stand  possessed  of  that  estate,  upon  confidence, 
for  A,  B,  C,  and  so  on  ?  But  if  a  certain  other  event  should 
happen,  I  then  tell  you  that  that  confidence  is  to  cease,  and 
the  trust  is  to  cease,  or  the  use,  as  we  call  it.  "^  An  example 
of  a  shifting  use,  as  given  by  the  courts,  is  a  grant  to  incor- 
porated proprietors  of  land  on  which  it  was  intended  to  build 
a  church,  habendum  to  said  proprietors,  etc.  ;  and  to  each  and 
every  person  who  may  hereafter  become  the  lawful  owner  and 

1  Gilb.  Uses,   Sugd.  ed.  152,   n.  ;  1  Spence,  Eq.  Jur.  452  ;  Cornish,  Uses,  19  ; 

2  Sharsw.  Bl.  Com.  334,  n. 

"  Egerton  v.  Brownlow,  4  H.  L.  Gas.  209. 


SHIFTING    USES.  579 

proprietor  of  a  pew  in  said  house  to  be  built  thereon  by  said 
proprietors,  "  the  use  would  legally  shift  to  those  who  should 
thereafterwards  become  pew-holders. "  ^ 

§  1634.  Fee  may  be  limited  after  Fee  by  Way  of  Use.  ■— 
By  the  common  law,  there  could  not  be  a  limitation  of  a  fee 
after  or  upon  a  fee ;  and  a  fee  could  only  be  defeated  by  the 
feoffor's  taking  advantage  of  the  broach  of  some  condition  by 
an  entry  made,  and  regaining  thereby  the  seisin  to  himself, 
since  a  stranger  had  no  right  to  avail  himself  of  such  condi- 
tion. But,  as  has  heretofore  been  explained,  before  the  statute 
of  uses,  the  feoffor  to  use,  when  he  parted  with  his  legal  estate 
and  seisin  to  his  feoffee,  might  provide  for  the  estate  being 
held  to  the  use  of  one  until  a  certain  event  should  happen, 
and  then  to  another,  though  each  of  these  limitations  of  the 
use  should  be  in  terms  a  fee;  and,  by  the  principle  adopted  in 
construing  the  statute  of  uses,  the  courts  held  that  there 
might  be  a  fee  limited  to  take  effect  after  a  fee,  by  destroying 
the  first  and  giving  effect  to  the  second  by  way  of  use,  whereby 
the  first  estate  is  ipso  facto  determined,  and  the  new  estate 
brought  into  its  place  by  the  act  of  the  law  itself, ^ 

§  1635.  Illustrations.  —  This  may  be  illustrated  by  what  is 
said  to  have  been  the  first  case  in  which  the  doctrine  of  shift- 
ing uses  was  established.  A  feoffment  in  fee  was  made  to  the 
use  of  W.  and  his  heirs  until  A.  paid  ,£40  to  W.,  and  then  to 
the  use  of  A.  and  his  heirs.  The  use  to  W.  was  in  terms  a 
fee;  but  it  was  made  defeasible  in  favor  of  A.,  who,  by  per- 
forming a  condition  on  his  part,  and  not  for  any  breach  of  a 
condition  on  the  part  of  W.,  became  entitled  to  the  use  to 
which  the  statute,  it  was  held,  annexed  the  seisin  whereby 
his  estate  was  perfected  and  the  estate  in  W.  defeated.^ 
Another  case  was  as  follows;  A  limitation  was  made  to  J.  S., 
a  younger  son  in  fee,  provided  that,  if  the  eldest  son  died 
without  issue,  J.  S.  should,  within  six  months  after  the  death 
of  the  former,  pay  £1,000  to  his  sister;  and,  on  default  of 
such  payment,  that  the  estate  should  go  to  the  sister  in  fee. 

1  Second  Cong.  See.  v.  Waring,  24  Pick.  307  ;  Paifkard  v.  Ames,  16  Gray,  328. 

2  3  Report,  Eng.  Com.  Real  Prop.  27,  28  ;  Wms.  Real  Prop.  242  ;  Oilb.  Uses, 
Sngd.  ed.  153,  n.  ;  Watk.  Conv.  (8th  ed.)  244  ;  Cornish,  Uses,  92,  94  ;  Carpeuter 
V.  Smith,  Pollexf.  78 ;  Co.  Lit.  271  b,  note  231,  §  3. 

8  2  Cruise,  Dig.  264. 


580  SHIFTING    USES. 

The  eldest  son  died  without  issue;  the  sister  died  within  six 
months;  and  on  the  omission  of  J,  S.  to  pay  tlie  prescribed 
sum,  the  estate  went  to  the  sister's  heirs. ^ 

§  1636.  Example  of  a  Marriage  Settlement.  —  But  perhaps 
the  best  illustration  of  the  application  of  this  doctrine  may 
be  afforded  by  the  terms  of  an  ordinary  marriage  settlement, 
in  which  it  plays  an  important  part.  In  this  the  limitation  is 
to  trustees,  first  to  the  use  of  A,  the  settler,  and  his  heirs  until 
the  intended  marriage  takes  place,  and  from  and  after  such 
marriage  to  the  uses  agreed  on,  as,  for  instance,  to  the  use 
of  D,  the  intended  husband,  and  his  assigns  for  life,  and  so 
oh  to  such  other  uses  and  upon  such  terms  as  may  be  pre- 
scribed. Here  the  first  estate  to  the  settler  was  a  fee;  and 
if  the  marriage  should  never  take  place,  there  would  be  noth- 
ing ever  to  divest  it:  upon  the  happening  of  the  marriage, 
however,  the  settler  is  at  once  divested  of  his  estate,  and  a 
freehold  takes  effect  in  possession  in  D,  —  the  seisin  and  pos- 
session, in  other  words,  shifting  from  A  to  D,  without  any 
further  act  done  by  either  party.  Still,  though  the  interest 
of  D,  until  it  takes  effect,  is  a  future  one,  and  contingent 
in  its  nature,  it  is  not  a  remainder;  for  no  remainder  can  be 
limited  after  the  expiration  of  a  qualified  fee,  and  such  is  the 
estate  first  limited  to  A,  the  settler.  And  so  the  uses  go  on 
shifting  from  one  to  another  from  time  to  time,  according 
to  the  terms  of  the  original  limitation  of  the  estate  in  the 
settlement.^* 

§  1637.  The  Seisin.  —  There  is  the  same  necessity  of  a 
seisin  in  some  one  other  than  the  cestui  que  use  in  the  case  of 
a  shifting,  as  there  is  in  that  of  a  springing  use.  And  where 
the  conveyance  to  such  a  use  is  by  some  mode  in  which  there 
is  no  transmutation  of  possession,  the  seisin  out  of  which  the 
use  is  to  arise  remains  in  the  original  owner  until  the  use 
comea  in  esse;  and  where  there  is  a  transmutation  of  posses- 

*  Note.  —  The  reader  is  referred  to  Appendix  A  for  the  foiin  of  a  marriage  settle- 
ment, showing  the  application  of  the  above  doctrine. 

1  Winchelsea  v.  Wentworth,  1  Vern.  402. 

2  Gilb.  Uses,  Sugd.  ed.  155,  n.  ;  Wms.  Real  Prop.  243  ;  2  Flint.  Real  Prop. 
622  ;  Carwardine  v.  Carwardine,  1  Eden,  34  ;  Wilson,  Uses,  5.  In  this  case  Lord 
Kenj'on  seems  to  use  "  springing  "  in  the  sense  of  "  shifting  "  as  above  defined. 
Tud.  Lead.  Cas.  263. 


SHIFTING    USES.  681 

sion,  it  arises  out  of  the  seisin  of  the  feoffees  or  releasees,  as 
in  the  case  of  springing  uses.^  There  cannot  be  a  shifting 
use  on  a  shifting  use.^ 

§  1638.  Springing  and  Shifting  Uses  Executory  Interests.  — 
But  with  this  attempt  to  distinguish,  for  purposes  of  defini- 
tion, between  springing  and  shifting  uses,  it  will  be  found 
more  convenient  to  treat  of  them  under  the  general  designa- 
tion of  executory  interests  created  under  the  statute  of  uses ; 
that  which  is  limited  first,  to  arise  at  a  future  time,  being  a 
springing  use,  and  that  which  is  to  arise  as  a  secondary  one 
after  another,  which  it  is  to  displace,  being  a  shifting  use. 

§  1639.  May  be  Future  Uses  after  Prior  Estate  if  the  two 
are  not  Coterminous.  —  There  may  be  such  a  use  limited  after 
an  estate  competent  to  sustain  it  as  a  remainder,  but  upon 
which  it  is  not,  in  fact,  dependent,  by  reason,  for  instance,  of 
an  interval  between  the  determination  of  the  prior  estate  and 
the  taking  effect  of  the  use.  Thus  a  limitation  to  the  use  of 
A  for  life,  and  after  his  death  and  one  day  to  the  use  of  B 
for  life,  though  it  would  be  inoperative  as  a  remainder,  may 
be  good  as  a  future  use  in  B.^  And  where  A  covenanted  to 
stand  seised  to  the  use  of  B  after  the  death  of  A  and  his 
wife,  it  was  held  a  good  limitation  of  a  future  use,  though 
no  estate  was  limited  to  the  wife  of  A  if  she  survived  him, 
and  the  use  to  B  could  not,  therefore,  have  been  sustained 
as  a  remainder,  for  want  of  a  particular  estate  to  support  it.* 
The  case  of  Weale  v.  Lower,  already  cited,  presents  the  dis- 
tinction above  stated.  There  the  limitation  was  to  the  use 
of  A  for  life,  and,  after  the  death  of  A  and  B,  to  C  in  fee, 
and  was  held  a  contingent  remainder,  because,  if  B  were  to 
die  in  the  lifetime  of  A,  C's  estate  would  at  once  vest  in 
him,  and  come  into  possession  upon  the  natural  determination 
of  A's  estate;  while  on  the  other  hand,  if  B  survived  A, 
the   remainder   over  to  C  would   be   defeated.^      Nor   would 

1  2  Cruise,  Dig.  264,  267  ;  Wilson,  Uses,  150  ;  Gilb.  Uses,  Sngd.  ed.  159,  n.  ; 
Hayes,  Real  Est.  167. 

2  Gilb.  Uses,  Sugd.  ed.  155,  n. 

3  "Wilson,  Uses,  24  ;  Colthirst  v.  Bejushin,  Plowd.  25  ;  Corbet  v.  Stone,  T.  Raym. 
140,  144. 

<  Doe  d.  Dyke  v.  Whittingham,  4  Tannt.  20  ;  Wilson,  Uses,  25. 
6  Weale  v.  Lower,  PoUexf.  65. 


582  SHIFTING   USES. 

there  be  any  difficulty  in  Doe  v.  Whittingham,  just  cited,  from 
the  want  of  a  seisin  to  support  the  future  use  if  the  wife  sur- 
vived the  husband,  as  in  that  case  the  use  would  result  to  the 
heirs  of  the  covenantor  during  the  life  of  the  wife,  and  the 
seisin  of  the  covenantor  would  serve  the  future  use  in  B.^ 

§  1640.  Conditional  Limitations,  Contingent  Remainders,  and 
Conditions  at  Common  Law  distinguished.  —  It  WOuld  be  a 
manifest  omission  of  an  important  principle  connected  with 
the  doctrine  of  springing  and  shifting  uses,  if  recurrence  were 
not  again  had,  in  this  connection,  to  the  rules  applicable  to 
conditional  limitations,  the  distinction  between  which  and 
contingent  remainders,  in  one  class  of  cases,  and  conditions 
at  common  law,  in  another,  is  often  exceedingly  nice,  and 
yet  very  important  in  its  consequences.  As  an  illustration, 
if  an  estate  is  limited  to  A  until  B  return  from  Rome,  and 
after  B  return  to  C,  the  limitation  is  a  contingent  remainder, 
and  good  as  such.  But  if  the  estate  had  been  limited  to  A, 
which  would  be  for  life  if  no  words  of  inheritance  were  an- 
nexed, provided  that  if  B  return  from  Rome  the  estate  should 
go  to  C,  the  limitation,  though  precisely  the  same  in  effect 
as  the  first,  would  be,  not  a  remainder,  but  a  conditional 
limitation.  In  the  one  case,  if  C's  estate  comes  into  effect  at 
all,  it  is  after  the  prior  estate  had  determined  by  the  natural 
expiration  of  the  time  for  which  it  was  limited;  whereas,  in 
the  other,  C's  estate,  if  it  took  effect,  came  in  and  displaced 
the  prior  estate  before  its  natural  termination,  and  took  its 
place  as  a  substitute  therefor.  Then,  again,  though  the 
estate  of  A  is  a  conditional  one,  liable  to  be  defeated  by  the 
happening  of  a  contingent  event,  it  is  not  a  case  of  condition 
at  the  common  law,  where  to  determine  an  estate  for  a  breach 
of  it  required  an  entry  by  the  grantor  or  his  heirs,  who 
thereby  regained  the  estate  originally  parted  with;  but  it  is  a 
case  where  the  estate  is  wholly  parted  with  by  the  grantor,  no 
interest  being  left  in  him,  and  passes  at  once,  upon  the  hap- 
pening of  the  event,  to  him  to  whom  it  is  limited.  That 
contingent  event,  when  it  happens,  is  the  limitation  of  the 
first  estate  granted ;  and  the  estate,  instead  of  going  back  to 
the  original  grantor,  goes  over,  eo  instanti,  and  without  any 

1  Doe  d.  Dyke  v.  Whittingham,  4  Taunt.  22. 


SHIFTING   USES.  583 

act  but  that  of  the  law,  to  the  party  named  in  the  very  gift 
itself  of  the  estate,  as  the  one  to  take  it  in  that  event.  ^  In 
case  of  a  condition  at  common  law,  if  the  estate  granted  is 
defeated  by  the  happening  of  the  event,  and  the  re-entry  by 
the  grantor,  it  is  restored  to  or  revests  in  the  grantor  as  of 
his  original  estate.  If  it  determines  by  its  original  limita- 
tion, or  the  natural  expiration  of  the  estate  as  first  granted, 
it  reverts  at  once,  and  without  any  act  on  his  part,  to  the 
grantor.  If  it  determines  by  being  defeated  by  the  contingent 
event  before  its  natural  expiration,  it  goes  in  the  case  above 
supposed  to  the  second  party,  or  grantee,  in  the  nature  of  a 
remainder,  technically  constituting,  as  above  stated,  a  con- 
ditional limitation.  The  following  is  given,  in  one  case,  as 
an  instance  of  a  conditional  limitation.  One  holding  an 
estate,  the  consideration  for  which  had  been  paid  by  his 
daughter,  conveyed  it  to  another  upon  an  agreement  that  he 
should  support  the  daughter  till  she  was  married ;  and  if  she 
was  married,  and  paid  the  expenses  of  her  support,  the  estate 
was  to  go  to  her  and  her  heirs.  The  daughter  married  and 
died,  having  paid  the  cost  of  her  support.  It  was  held  that 
the  estate  was  defeated  in  the  first  taker,  and  went  to  her  heir 
without  any  act  done  on  her  or  his  part.^ 

§  1641.  Conditional  Limitations  only  arise  by  "Way  of  Shift- 
ing Use  or  Devise. —  These  conditional  limitations  are  indeed 
shifting  or  secondary  uses,  and  can  only  be  created  by  way  of 
use,  or  by  last  will,  where  they  take  the  name  of  executory 
devises.  They  would  be  void  if  inserted  in  a  deed  at  common 
law,  which  does  not  derive  its  effect  from  the  statute  of  uses.^ 

1  Gilb.  Uses,  Sugd.  ed.  177,  n.  ;  Fearne,  Cont.  Rem.  10,  383,  Butler's  notes ; 
Cornish,  Uses,  95  ;  Cogan  v.  Cogan,  Cro.  Eliz.  360,  where  the  conveyance  failed, 
not  being  to  uses;  2  Fearne,  Cont.  Rem.  Smith's  ed.  §  149  ;  Sand.  Uses,  152-154; 
Brattle  Sq.  Ch.  v.  Grant,  3  Gray,  146,  in  which  case  this  subject  is  fully  examined, 
and  with  great  ability  and  power  of  discrimination,  by  Bigelow,  J.  And  for  a 
further  illustration  of  the  distinction  between  a  condition,  a  limitation,  and  a 
conditional  limitation,  as  applied  to  estates  at  common  law  or  by  way  of  uses  or 
executory  devises,  see  2  Smith's  Fearne,  §§  34-39  ;  Touch.  117,  150,  151;  1  Prest. 
Est.  45-49  ;  2  ^yood's  Conv.  Powel's  ed.  506  ;  Henderson  v.  Hunter,  59  Penn. 
St.  340. 

2  Battey  v.  Hopkins,  6  R.  I.  445. 

8  Gilb.  Uses,  Sugd.  ed.  178,  u. ;  2  Fearne,  Cont.  Rem.  Smith's  ed.  §  149,  n., 
§  150  ;  Wilson,  Uses,  47  ;  Cornish,  Uses,  96.    An  ingenious  and  astute  writer  in  the 


684  SHIFTING    USES. 

§  1642.  Shifting  Uses  applicable  to  Chattel  Estates.  —  Thus 
far,  the  estates  spoken  of  under  this  head  have  been  those  of 
freehold.  But  the  same  rules,  it  will  be  found,  which  have 
been  applied  to  future  uses  in  respect  to  freeholds,  apply  as 
well  to  uses  in  chattel  interests.  In  this  respect  such  uses 
differ  from  corresponding  estates  at  common  law,  by  which 
there  can  properly  be  no  remainder  of  a  term  for  years. 
Though  a  lessee  may  part  with  his  term,  or  a  part  of  it,  he 
cannot  limit  it  by  way  of  remainder,  in  the  proper  sense  of 
that  term.  Thus,  if  one  possessed  of  an  estate  in  lands  for 
fifty  years  were  to  grant  the  premises  to  one  for  twenty  years, 
with  the  remainder  of  his  estate  to  another,  it  would  be 
nothing  more  than  dividing  his  estate  into  two  parts,  the  first 
of  which  he  gives  to  A,  and  the  balance,  namely,  for  the 
thirty  years  of  the  fifty  from  and  after  the  expiration  of  the 
twenty,  to  B.^  But,  as  the  law  anciently  stood,  had  he 
granted  his  term  as  an  entire  thing,  though  it  were  for  an 
hour,  he  would  have  parted  with  his  whole  estate  or  interest, 
and  there  could  be  no  subsequent  limitation  of  a  terra  for 
years  after  an  estate  was  carved  out  of  it.  But  this  was 
soon  altered.  And  yet,  because  a  freehold  estate  is,  in  the 
theory  of  the  law,  always  deemed  of  superior  capacity  and 
importance  to  a  term  for  years,  however  extended,  there 
cannot  at  this  day,  by  the  common  law,  be  a  limitation  of  the 

American  Jurist  undertakes  among  other  things,  in  a  treatise  upon  the  '*  distinction 
between  conditions  and  limitations  in  deeds  and  devises,"  to  define  the  difference 
between  "  contingent  "  and  "conditional  "  "limitations."  "They  are,"  hesays, 
"sometimes  used  as  synonymous  and  convertible  terms,  though  properly  applicable 
to  estates  essentially  different."  "  There  are  limitations  in  devises,  and  limitations 
in  deeds.  Limitations  in  common  law  conveyances  may  be  contingent ;  limitations 
in  devises,  conditional."  "  Both  species  of  limitations  are,  properly  speaking,  con- 
tingent. A  condition  annexed  to  an  estate  by  devise  loses  its  distinctive  character, 
because  the  testator  intended  the  estate  peremptorily  to  go  over  on  the  happening 
or  failure  of  the  event,  which,  if  found  as  a  qualification  annexed  to  a  deed,  would 
create  a  condition."  The  whole  article  is  well  worthy  the  reader's  attention  ;  but 
the  distinction  between  these  limitations  is  quite  refined,  and  the  context  usually 
furnishes  a  sufficient  explanation  of  the  sense  in  which  the  terms  are  intended  to 
be  applied  by  writers  who  employ  them.  See  11  Am.  Jur.  42,  44,  et  seq.  See  also 
Buckworth  v.  Thirkell,  3  Bos.  &  P.  655,  note,  where  Lord  Mansfield  says:  "It 
is  contended  that  this  is  a  conditional  limitation.  It  is  not  so,  but  a  contingent 
limitation." 

1  1  Cruise,  Dig.  235  ;  2  Fearne,  Cont.  Rem.  Smith's  ed.  §  159. 


SHIFTING    USES.  585 

balance  of  a  term  after  the  limitation  of  the  term  itself  for  the 
life  of  the  grantee.^  This  can  only  be  done  by  the  way  of  a 
springing  or  shifting  use,  or  executory  devise.^ 

§  1643.  Successive  Estates  in  Chattel  Interests.  —  The 
future  use  of  a  chattel  interest  cannot  be  limited  by  way 
of  a  remainder,  whether  preceded  by  a  prior  limitation, 
or  limited  on  a  certain  or  uncertain  event.  It  is  either  a 
springing  or  shifting  use,  or  an  executory  bequest,  falling 
within  the  rules  which  govern  such  uses  or  bequests,  or 
it  is  a  conditional  limitation.^  But  if  the  term  be  limited, 
first  to  one  and  the  heirs  of  his  body,  the  whole  term  will 
vest  in  him,  since  there  cannot  be  an  estate-tail  in  chattels 
within  the  statute  de  donis;  and  what  would  be  an  estate- 
tail  in  inheritable  lands  becomes  an  absolute  ownership  of 
the  chattels  if  limited  to  the  heirs  of  the  body  of  the  donee 
or  grantee.*  The  following  cases  will  illustrate  a  limitation 
of  successive  estates  in  a  chattel  interest.  One  having  a  term 
devised  the  house  and  land  to  A  B  for  life,  with  remainder 
after  his  death  to  his  sister;  and  this  was  held  to  be  a  good 
executory  bequest  to  the  sister  to  take  effect  after  the  death 
of  A  B.^  W.  W.,  possessed  of  a  term  in  lands,  assigned  it 
to  trustees  in  trust  that  he  should  first  receive  the  profits 
during  his  own  life,  after  his  deatji  his  wife  to  have  the 
profits  during  her  life,  after  her  death  J.  0.  to  receive  half 
the  profits  during  his  life,  and  after  his  death  his  child 
during  his  life;  after  the  death  of  such  child,  E.  0. 
to  have  the  profits  during  his  life,  and  after  his  death 
his  child,  and  after  decease  of  the  child  of  E.  0.  to  permit 
S.  Chalfont  to  receive  the  profits.  It  was  held,  that,  all  the 
trusts  being  expressly  limited  for  life  or  lives,  the  same  were 

1  1  Cruise,  Dig.  235;  2  Prest.  Abst.  5  ;  4  Kent,  Com.  270  ;  Fearne,  Cont.  Rem. 
401,  Butler's  note;  Wright  v.  Cartwright,  1  Burr.  284  ;  Burt.  Real  Prop.  §  897; 
2  Bl.  Com.  174. 

2  2  BI.  Com.  174 ;  2  Fearne,  Cont.  Rem.  Smith's  ed.  §  l.o9  a  ;  2  Flint.  Real  Prop. 
301 ;  Wright  v.  Cartwright,  1  Burr.  284  ;   Wilson,  Uses,  30. 

8  Fearne,  Cont.  Rem.  401,  Butler's  note;  2  Fearne,  Cent.  Rem.  Smith's  cd. 
§  159  a  ;  Burt.  Real  Prop.  §§  946,  947. 

*  Burt.  Real  Prop.  §  948 ;  ante  §  197  ;  2  Flint,  Real  Prop.  303 ;  Gibbs  v.  Bar- 
nardiston,  Prec.  in  Chanc.  323  ;  Seal  v.  Seal,  id.  421. 

5  Lampet's  case,  10  Rep.  46  ;  Burt.  Real  Prop.  §  946. 


686  SHIFTING   USES. 

good,  and  the  remainder  limited  to  S.  Chalfont  was  a  good 
one.  ^  * 

§  1644.  Qualities  and  Incidents  of  Future  Uses.  —  In  con- 
sidering the  qualities  and  incidents  of  future  uses  if  once 
created,  they  are,  in  the  first  place,  devisable  and  assignable 
in  equity,  and  will  descend  to  heirs  where  the  person  who  is 
to  take  can  be  ascertained;  but  they  cannot  be  conveyed  by 
deed.^ 

§  1645.  Restraint  of  Waste  in  Case  of  Future  Uses.  —  In 
analogy  to  the  rules  of  the  common  law,  by  which  one  having 
a  reversionary  interest  may  have  waste  against  a  tenant  who 
does  acts  to  impair  the  inheritance,  if  the  one  who  is  in  pos- 
session commit  wilful  waste  upon  the  estate,  chancery  will 
interpose  to  prevent  it  upon  the  application  of  one  entitled  to 
a  future  use  in  the  estate.^ 

§  1646.  Shifting  and  Springing  Uses  not  affected  by  Destruc- 
tion of  Frior  Estate.  —  In  case  of  a  contingent  remainder,  it 
is  in  the  power  of  the  legal  tenant  for  life  to  defeat  the  re- 
mainder by  destroying  that  upon  which  it  depends ;  but  noth- 
ing which  the  owner  of  a  prior  limited  estate,  in  the  case  of 
a  springing  or  shifting  use,  can  do,  can  bar  or  affect  the 
latter,*  since  the  second  estate  does  not  depend  upon  the 
first. 

*  Note.  — There  are  many  rules  in  regard  to  the  questions  what  limitations  are 
executory,  what  is  the  effect  of  a  limitation  after  a  preceding  executory  one,  within 
what  time  a  use  must  arise  to  constitute  a  valid  limitation,  and  what  limitations 
would  be  too  remote,  which  are  either  directlj'  derived  from  the  law  of  executory 
devises,  or  are  so  nearly  identical  therewith  that  it  would  be  little  more  than 
repetition  to  explain  and  illustrate  them  here,  and  again  when  treating  of  executory 
devises.  It  is  proposed,  therefore,  to  defer  the  consideiation  of  these  questions 
until  the  subject  is  resumed  as  a  part  of  the  law  of  executory  devises,  since  "a 
springing  use  is  in  a  deed  what  an  executory  devise  is  in  a  will,  and  the  same  rules 
are  applicable  to  both."     Gilb.  Uses,  Sugd.  ed.  174,  n. 

1  Oakes  v.  Chalfont,  PoUexf.  38. 

2  Wilson,  Uses,  156,  169  ;  Jones  v.  Roe  d.  Perry,  3  T.  R.  88  ;  Hobson  v.  Trevor, 
2  P.  Wms.  191  ;  Cornish,  Uses,  100,  101 ;  Fearne,  Cont.  Rem.  366,  and  Butler's 
note  ;  2  Wms.  Saund.  388  k. 

8  Fearne,  Cont.  Rem.  562,  and  Butler's  note;  Stansfield  v.  Habergham,  10  Ves. 
275. 

*  Cornish,  Uses,  98,  99  ;  Gilb.  Uses,  Sugd.  ed.  287,  290  and  note ;  Wilson, 
Uses,  48  ;  Tud.  Lead.  Cas.  263  ;  Archer's  case,  1  Rep.  67;  Chudleigh'a  case,  id.  120  ; 
4  Kent,  Com.  241 ;  2  Cruise,  Dig.  281. 


SHIFTING   USES.  587 

S  1647.     Right    of    Entry    sustains    Contingent    Remainder    by 
"Way  of  Use.  —  It  should  bc  stated,  however,  for  the  purpose  of 
being  applied  hereafter,  that  a  series  of  cases  hold  that  there 
is  this  difference  between  a  contingent  freehold  remainder  at 
common  law  and  one  limited  by  way  of  use,  that  if,  in  case  of 
the  former,  when  the  remainder  vests, there  is  a  right  of  entry 
remaining   in  him  to  whom  the  prior   particular  estate  was 
limited,  it  will  sustain  such  remainder,  although  such  person 
may  have  lost  his  seisin ;  whereas,  in  the  case  of  a  contingent 
use  limited  as  a  remainder,  there  must  be  an  actual  seisin  in 
him  who  has  the  previous  estate  on  which  such  use  depends, 
subsisting  at  or  after  the  time  when  it  comes  in  esse,  out  of 
which  such  use  may  arise,  before  it  can  be  executed  by  the 
statute,  a  seisin  ready  to  unite  with  the  use  being  essential  to 
the  estate's  taking  effect.     But  it  does  not  seem  to  be  mate- 
rial, upon  this  theory,  whether  this  seisin  should  be  in  the 
feoffees  to  use,  or  in  some  cestui  que  use  in  whom  a  preceding 
use  had  vested.^     In  the  case,  therefore,  of  the  remainder  at 
common  law,  if  the  tenant  of  the  preceding  estate  had  been 
disseised,  the  contingent  remainder  dependent  upon  it  would 
not  be  defeated  so  long  as  the  disseisee  had  a  right  of  entry 
remaining.'-^     But  in  the  case  of  a  remainder  by  way  of  use,  if 
the  tenant  is  so  disseised,  there  must  be  an  actual  entry  made 
and  a  seisin  regained  before  the  contingent  use  can  be  exe- 
cuted by  the  statute ;  though  this  may  be  either  by  the  feoffees, 
or  the  cestui  que  use  under  some  preceding  vested  use,  for  the 
obvious  reason,  that,  in  carrying  out  this  idea,  there  must  be 
an  actually  existing  seisin  in  some  one  who  is  privy  to  the 
use,  which  seisin  is  capable  of   being  united  with  the  use.^ 
But  it  should  also  be  stated,  that,  where  a  right  of  entry  sub- 
sists in  the  feoffee  or  cestui  que  use  of  some  preceding  vested 
use,    the   necessity    of   an   actual   entry  by  him    in  order  to 
regain  a  sufficient  seisin  to  serve  a  contingent  use  is  directly 
controverted   by    Mr.    Sugden,   in  which   he  is   sustained  by 
Chancellor  Kent,  as  well  as  by  the  reasoning  of  Mr.  Fearne 

1  Fearne,  Cont.  Rem.  290,  Butler's  note. 

2  Ante,  §  1592  ;   Fearne,  Cont.  Rem.  286 ;  4  Kent,  Com.  287  ;   Cornish,  Uses, 
134. 

8  Fearne,  Cont.  Rem.  290,  295,  and  Butler's  note  ;   Chudleigh's  case,  1  Rep. 
120;  4  Kent,  Com.  242;  Wegg  v.  Villers,  2  RoUe,  Abr.  796. 


588  SHIFTING   USES. 

and  Mr.  Butler,  Mr.  Cruise,  and  of  Professor  Greenleaf.  Their 
doctrine,  when  analyzed,  is,  that  limitations  to  uses  of  re- 
mainders should  be  construed  in  lilce  manner  as  limitations 
of  remainders  at  common  law.  It  discards  the  idea  of  a 
scintilla  juris  in  the  feoffees,  and  holds  that  the  statute  draws 
the  estate  in  the  land  out  of  the  feoffees,  and  they  become 
divested,  and  the  estates  limited  prior  to  the  contingent  uses 
take  effect  as  legal  estates;  and  the  contingent  uses  take 
effect  as  they  arise  by  force  of  the  original  seisin  of  the 
feoffees,  the  vested  estates  being  subject  to  open  and  let  in 
the  contingent  uses,^  This  theory,  it  will  be  seen,  discard- 
ing all  notion  of  a  scintilla  juris  in  the  original  feoffees, 
assumes  that  the  statute,  through  the  seisin  originally  in 
these  feoffees,  virtually  converts  the  successive  uses  into  so 
many  legal  estates  as  they  rise,  giving  them  the  incidents  and. 
properties  of  legal  estates  in  remainder,  whether  vested  or 
contingent,  according  as  the  terms  of  the  limitation  may  be.^ 

1  Sugd.  Pow.  c.  1,  §  3,  pp.  17-48  ;  4  Kent,  Com.  238-246  ;  Gilb.  Uses,  Sngd. 
ed.  297,  n.  ;  Fearne,  Cont.  Rem.  293,  295,  and  Butler's  note ;  2  Greenl.  Cruise, 
Dig.  282,  284,  n.  ;  Tud.  Lead.  Ca.s.  260. 

2  1  Prest.  Est.  155,  158,  170 ;  Hayes,  Real  Est.  167.  Mr.  Cornish  rather  de- 
fends  the  notion  of  a  scintilla  in  the  feoffees  to  supply  the  necessary  seisin  to  the 
contingent  uses  as  they  arise ;  though  he  says  it  is  "  a  doctrine  which  has  been 
much  agitated,  and  is  not,  to  this  day,  acquiesced  in  or  understood."  Cornish, 
Uses,  140.  See  also  Sand.  Uses,  111  ;  Booth's  Opin.  Shep.  Touch.  531,  note.  As 
a  mere  matter  of  practical  utility,  it  can  be  of  very  little  importance  to  settle  this 
point  of  nice  technical  law.  It  first  arose  in  the  time  of  Ch.  J.  Dyer;  but  as  a  part 
of  what  has  been  deemed  to  be  the  English  law  of  real  property,  it  could  not  be 
■properly  omitted  altogether.  And  a  single  case  which  arose  under  it  may  serve  to 
illustrate  the  application  of  the  doctrine,  while  it  presents  a  curious  incident  in 
personal  history  which  cannot  be  without  interest  to  the  reader  from  the  names 
and  character  of  the  parties  concerned.  The  case  referred  to  is  that  of  Wegg  v, 
Villers.  The  circumstances  iinder  which  it  arose  were  these,  as  stated  by  the 
biographer  of  Lord  Coke.  The  relations  of  Lord  Coke  with  his  wife.  Lady  Hatton, 
it  is  well  known,  were  not  of  the  most  pleasant  kind.  Coke  having  fallen  into 
disgrace  with  King  James,  while  acting  as  Lord  Chief  Justice,  sought  to  regain  the 
favor  of  that  weak  and  capricious  monarch  ;  and  it  was  through  the  agency  of 
Buckingham,  who  was  at  the  time  the  king's  favorite,  that  he  souglit  to  operate 
upon  the  king.  Buckingham  had  a  brother,  Sir  John  Villers,  and  Coke  a  daughter 
Frances,  by  Lady  Hatton,  and  he  proposed  a  match  between  them.  The  mother, 
angry  at  not  having  been  consulted  in  the  matter,  carried  her  daughter  off,  and 
secreted  her.  Coke,  discovering  her  place  of  concealment,  went  with  his  sons  and 
seized  her  by  force.  Lady  Hatton  appealed  to  the  Privy  Council,  and  it  became  an 
affair  of  state.  It  was  at  length  adjusted  upon  Lord  Coke's  paying  £10,000  ster- 
ling, and  entering  into  articles  of  settlement  upon  the  marriage  of  his  daughter. 


SHIFTING   USES.  589 

§  1648.  Effect  on  Future  Use  of  barring  Prior  Entail.  — 
There  is  what  may  be  deemed  to  be  an  exception  to  the  gen- 
pursuant  to  articles  and  directions  of  the  Lords  of  the  Council.  The  adroitness 
with  which  this  settlement  was  drawn,  and  the  cunning  manner  in  which  he 
arranged  its  provisions,  so  as  to  defeat  it  or  let  it  stand  good  as  he  might  choose, 
will  be  perceived  by  recurring  to  its  terms,  and  remembering  and  applying  the  idea 
advanced  in  Chudleigh's  case,  that  the  uses,  so  far  as  contingent,  must  have  an 
actual  seisin  in  some  one,  answering  to  a  feoffee's,  to  sustain  them.  Jn  the  first 
place,  the  conveyance  was  made  by  covenant  to  stand  seised  on  his  part,  and  the 
limitations  derived  their  force  and  effect  from  the  seisin  in  himself;  for  he  cove- 
nanted to  stand  seised  to  the  use  of  himself  for  life,  remainder  to  the  use  of  his 
wife  for  life,  remainder  to  the  use  of  his  daughter  for  life,  remainder  to  her  first  and 
other  sons  in  tail,  reversion  to  his  own  right  heirs.  This  gave  an  estate  to  him  for 
life  in  possession,  a  vested  estate  for  life  in  remainder  to  his  wife,  and  the 
same  to  his  daughter  for  life  in  remainder,  with  contingent  uses  by  way  of 
remainder  to  unborn  sons  in  tail,  reserving  to  himself,  after  and  above  all  these 
limitations,  a  reversion  in  fee.  Lord  Coke  then  made  a  deed  of  grant  of  this 
reversion  to  a  third  person  without  consideration,  and  in  his  deed  recited  the 
foregoing  settlement.  He  then  made  a  feoffment  in  fee  of  the  lands  thus  settled, 
with  livery  of  seisin.  As  all  the  estates  but  the  reversion  were  by  way  of  use,  it 
was  the  seisin  that  was  in  him  as  covenantor  and  reversioner  which  was  to  sup- 
port them  ;  and  if  this  was  destro3'ed,  so  far  as  these  were  contingent,  they  would 
be  defeated.  But  as  his  grant  of  this  reversion  was  to  one  having  notice,  it 
remained  subject  to  the  settlement ;  and  the  seisin  of  this  grantee  was  that  out  of 
which  these  uses  were  to  arise  in  the  same  way,  as  from  the  seisin  which  Lord 
Coke  had  had  before  the  grant.  But  as  he  was  also  in  possession  for  life,  the  effect 
of  his  feoffment  was  not  only  to  destroy  his  own  seisin  and  estnte,  but  to  make  a 
discontinuance  of  that  of  his  grantee,  the  reversioner,  together  with  the  estate  of 
the  wife  and  daughter.  But  it  left  a  right  of  entry  in  the  daughter.  But  as  this 
discontinuance  was  a  forfeiture  of  the  father's  life-estate,  and  that  of  his  wife  dur- 
ing coverture,  it  gave  a  right  of  entry  in  the  daughter  as  holder  of  the  next  vested 
estate,  and  a  contingent  right  of  entry  to  the  wife,  dependent  on  her  surviving  her 
husband.  The  former  was  suflScient  to  support  the  contingent  use  to  the  daughter's 
first  son,  provided  there  should  be  a  seisin  to  serve  such  use  when  it  should  arise. 
As  it  turned  out,  Lord  Coke's  wife  survived  him,  and  having,  by  the  right  of 
entrj"-  which  she  thereby  acquired,  entered  upon  the  estate,  reinstated  the  divested 
estates,  including  that  of  the  grantee  of  the  reversion,  out  of  whose  seisin  the  con- 
tingent uses  were  to  arise,  and  the  limitations  all  took  effect  in  their  order.  If, 
however.  Lord  Coke  had  made  his  feoffment  before  making  the  grant  of  the  rever- 
sion, the  effect  would  have  been  to  have  worked  a  disseisin,  and  divested  all  the 
then  subsisting  estates,  including  the  estate  or  seisin  out  of  which  the  contingent 
uses  were  to  arise,  and  which  was  to  serve  them.  For  as  there  was  no  privity 
between  his  feoffee,  his  wife  or  daughter  and  his  heirs,  whose  seisin  alone  could 
support  their  contingent  uses,  no  entry  by  the  wife  or  daughter  could  restore  the 
estate  and  seisin  of  Lord  Coke  or  his  heirs,  contrary  to  his  own  feoffment,  since  he 
himself  could  not  have  entered  against  such  a  feoffment.  Now,  the  cunning  part 
of  the  arrangement,  which  was  defeated  by  his  dying  while  things  were  in  the 
above  state,  was  this :  If  he  had  seen  fit  to  sustain  the  remainders,  he  would  have 


590  SHIFTING   USES. 

eral  rule,  that  no  act  of  the  holder  of  prior  estate  can  operate 
to  bar  a  springing  or  shifting  use  when  it  shall  arise;  and 
that  is,  if  the  prior  estate  be  an  estate-tail.  In  that  case, 
the  tenant  in  tail,  by  suffering  a  recovery,  may  defeat  the  use 
which  awaited  the  contingent  event  which  was  to  have  deter- 
mined such  estate.  Thus  where  the  limitation  is  to  A  and 
his  heirs,  to  the  use  of  B  in  tail,  provided  that  if  C  return 
from  Rome,  then  to  D  in  fee.  Now,  D's  interest  is  a  shift- 
ing use ;  and  yet,  if  B  were  to  suffer  a  recovery,  he  would  bar 
the  limitation  over,  if  done  before  C's  return  from  Rome.^ 

suppressed  the  feoffment,  aud  only  have  shown  the  grant  of  the  reversion,  to 
counteract  the  feoffment,  if  that  should  be  set  up  by  any  one  ;  whereas,  if  he  had 
wished  at  any  time  to  destroy  the  remainders,  he  would  have  suppressed  the  grant 
of  the  reversion,  and  left  the  feoffment  to  have  its  effect.  As  he  left  both  these  in 
force,  it  gave  rise  to  the  action  above  named,  and  an  indefinite  amount  of  refine- 
ment and  ingenious  discrimination  upon  a  rule  of  law  too  subtle  to  be  apprehended 
by  ordinary  minds.  Biog.  Diet.  Lond.  1798,  "Coke  ;  "  Wegg  v.  Villers,  2  Rolle, 
Abr.  796  ;  Fearne,  Cont.  Rem.  295-298  ;  Sugd.  Pow.  32  ;  Gilb.  Uses,  194-197  ; 
Glib.  Uses,  Sugd.  ed.  395,  n.     See  Loyd  v.  Brooking,  1  Ventr.  188. 

1  Tud.  Lead.  Gas.  263  ;  Wilson,  Uses,  64  ;  Sand.  Uses,  153  ;  Fearne,  Cont.  Rem. 
17  ;  Gilb.  Uses,  Sugd.  ed.  157,  n. 


NATURE   AND    CLASSIFICATION    OF   POWERS.  591 


CHAPTER   LXXIV. 

POWERS  —  NATURE    AND    CLASSIFICATION   OP   POWERS. 

§  1649.  Definition. 

1650.  Powers  originate  from  doctrine  of  uses. 

1651.  Execution  of  power  causes  use  to  shift. 

1652.  How  derived  from  statute  of  uses. 

1653.  Powers  illustrated  and  their  tei-ms  defined. 

1654.  How  powers  are  executed  through  statute  of  uses. 

1655.  Power  and  estate  may  be  in  same  person. 

1656.  How  trust  created  by  execution  of  power. 

1657.  Collateral  powers. 

1658.  Powers  appendant. 

1659.  Powers  in  gross. 

1660.  Powers  appendant  —  Illustrations. 

1661.  Powers  in  gross  —  Hlustrations. 

1662.  How  powers  affected  by  conveyance  of  the  land. 

1663.  Powers  general  and  special. 

1664.  Powers  of  appointment  and  revocation. 

§  1649.  Definition.  — Powers  "are  methods  of  causing  a  use 
with  its  accompanying  estate  to  spring  up  at  the  will  of  a 
given  person." ^ 

§  1650.  Powers  originate  from  Doctrine  of  Uses.  —  Powers, 
as  thus  applied,  do  not  come  within  the  popular  meaning  of 
the  term  when  used  in  reference  to  acts  done  by  one  as  the 
agent  or  attorney  for  another. ^  They  derive  their  origin  and 
character  directly  from  the  doctrine  of  uses.  It  will  be 
recollected,  that,  prior  to  the  statute  27  Henry  VHL,  any 
one,  upon  parting  with  his  legal  seisin  and  estate  to  the 
feoffee  to  whom  he  saw  fit  to  transfer  it  for  the  purpose  of 
raising  a  use  out  of  the  same,  if  he  did  not  then  desire  to 
make  a  full  and  final  disposal  of  the  use,  might  reserve  to 
himself  the  right  of  declaring,  at  a  future  time,  to  whose  use 
the  lands  should  be  held,  or  to  whom  the  feoffee  should  con- 

1  Wms.  Real  Prop.  245. 

2  Hunt  V.  Rousmaniere,  8  Wheat.  174  j  Combes's  case,  9  Rep.  76. 


592  POWERS. 

vey  them ;  which  right  he  might  exercise,  though  by  so  doing 
he  might  defeat  a  present  use  which  he  had  declared  at  the 
time  of  making  the  feoffment;  or  he  might,  when  making 
such  feoffment,  provide  for  such  a  future  disposition  of  the  use 
by  some  third  person,  and  that  the  feoffee  or  trustee  should 
convey  the  lands  as  such  third  person  should  appoint.  At 
common  law,  however,  no  one  could  reserve  to  a  stranger  a 
power  of  entering  upon  land  and  defeating  the  title  of  one  in 
possession  thereof  for  a  condition  broken.^ 

§  1651.  Execution  of  Power  causes  Use  to  shift.  —  This  is 
the  principle  from  which  are  derived  springing  and  shifting 
uses,  by  which,  as  previously  explained,  one  conveying  land 
might  provide  by  the  same  instrument,  that,  upon  the  hap- 
pening of  some  future  event,  a  use  should  spring  up,  or  one 
thereby  declared  should  shift  from  one  person  to  another, 
without  requiring  any  other  act  to  be  done  in  the  way  of 
transfer,  the  appointment  by  the  one  having  the  power  being 
in  effect  tantamount  to  the  happening  of  the  event  which  was 
to  cause  the  future  use  to  spring  up  or  shift.^ 

§  1652.  How  derived  from  Statute  of  Uses.  —  In  giving 
effect  to  these,  chancery  further  seized  upon  that  expression 
in  the  statute  of  uses  by  which  the  estate  of  the  feoffee  to  use 
was  declared  to  be  in  the  cestui  que  use,  "  after  such  quality, 
manner,  form,  and  condition  "  as  he  had  before  in  or  to  the 
use  that  was  in  him,  and  retained  its  cognizance  of  uses  to  be 
raised  or  declared  by  the  means  above  mentioned,  and  thus 
introduced  a  capacity  of  working  changes  in  the  ownership  of 
estates  in  lands  which  was  unknown  to  the  common  law.^ 
It  was  in  this  way  that  the  whole  system  of  modern  powers 
had  its  origin,  and  from  this  source  they  derive  their  proper- 
ties and  qualities.* 

§  1653.     Powers  illustrated  and  their  Terms  defined.  —  Chan- 

1  Sugd.  Pow.  4;  Coniish,  Uses,  19;  Co.  Lit.  237  a. 

2  1  Spence,  Eq.  Jur.  455  ;  Bac.  Law  Tracts,  314  ;  Coruish,  Uses,  19 ;  Co.  Lit. 
271  h,  note  231. 

8  3  Report,  Eng.  Com.  Eeal  Prop.  27,  28. 

*  Wms.  Real  Prop.  245.  Mr.  Chance  insists  that  something  answering  to  pow- 
ers existed  at  common  law.  Chance,  Pow.  §§  5-12.  But  as  powers  here  under- 
stood are  derived  from  the  statute  of  uses,  it  is  unnecessary  to  stop  to  examine  the 
point. 


NATURE   AND    CLASSIFICATION    OF   POWERS.  593 

cellor  Kent  defines  a  power  as  "a  mere  right  to  limit  a  use. "^ 
Mr.  Cornish  calls  powers  "merely  modes  or  media  of  raising 
a  future  use."^  Mr.  Booth  (and  his  language  is  adopted  by- 
Mr.  Hilliard  and  Mr.  Butler)  says:  "  Where  a  use  arises  from 
an  event  provided  for  by  the  deed,  it  is  called  a  future,  a  con- 
tingent, an  executory  use;  when  it  arises  from  the  act  of 
some  agent  or  person  nominated  in  the  deed,  it  is  called  a 
use  arising  from  the  execution  of  a  power.  In  truth,  both  are 
future  and  contingent  uses  until  the  act  is  done,  and  after- 
wards they  are,  by  operation  of  the  statute,  actual  estates. 
But  till  done,  they  are  in  suspense,  the  one  depending  on  the 
will  of  Heaven  whether  the  event  shall  happen  or  not,  the 
other  on  the  will  of  man.  While  these  last  are  in  suspense^ 
they  are  called  Powers.''^  And  Mr.  Butler  illustrates  this 
statement  by  supposing  an  estate  conveyed  to  A  and  his  heirs 
to  the  use  of  B  for  life,  remainder  to  such  uses  generally,  or 
to  such  son  of  B  as  B  shall  appoint,  and  B  appoints  to  the 
use  of  his  first  son.  Immediately  upon  the  appointment,  the 
use  is  executed  in  the  son.  B  had  only  a  life-estate,  and 
consequently  could  not  convey  an  estate-tail  to  his  own  son. 
"It  operates,  therefore,  as  a  designation  of  the  person  to  take 
the  use.  The  right  to  make  this  designation  is  termed  a 
power  of  appointment.  The  exercise  of  it  is  termed  an 
appointment.  The  person  taking  under  it  is  termed  the 
appointee.'" ^  Another  illustration  of  the  operation  of  a  power, 
varying  somewhat  from  the  case  above  supposed,  would  be 
this:  A  conveyance  is  made  to  A  and  his  heirs  to  such  uses 
as  B  shall  by  deed  or  last  will  appoint;  and,  in  default  of  or 
until  such  appointment  made,  to  the  use  of  C  and  his  heirs. 
A  in  this  case  is  simply  a  feoffee  to  uses ;  and,  until  some 
appointment  made  by  B,  the  seisin  in  A  unites  with  the 
present  use  in  C,  and  vests  the  estate  in  C  by  virtue  of  the 
statute.  But  if  B  were  at  any  time  to  direct  that  the  use 
should  thereafter  be  in  D,  or,  in  other  words,  to  appoint  the 
use  to  D,  although  B  had  no  property  or  estate  whatever  in 

1  4  Kent,  Com.  334. 
»  Cornisli,  Uses,  89. 

8  Co.  Lit.  271  b,  Butler's  note,  231,  §  3,   pi.  4  ;  Shep.   Touch.  Hill.  eJ.  529, 
note. 

VOL.  II.  —  38 


594  POWERS. 

the  land,  the  moment  he  makes  such  declaration  or  appoint- 
ment by  deed  or  will,  the  estate  which  is  in  C  is  at  once 
divested,  and  becomes  vested  in  D.^ 

§  1G54.  How  Powers  are  executed  through  Statute  of  Uses. 
—  It  is  not  that  B  conveys  any  estate  in  or  acts  directly  upon 
the  possession  of  the  land.  His  is  a  mere  power,  which 
operates,  when  exercised  in  the  form  prescribed,  as  a  limita- 
tion of  a  use  in  favor  of  the  one  he  may  name ;  and  then  the 
statute  at  once  unites  the  seisin  with  the  use  in  D,  executing 
it,  and  thereby  perfecting  his  estate.^  By  these  illustrations, 
the  applicability  of  the  language  of  Mr.  Booth  above  cited  will 
become  apparent.  The  act  of  declaring  the  use  in  the  case 
supposed  becomes  the  event  upon  the  happening  of  which  a 
new  use  springs  up  in  favor  of  D,  or  the  old  one  in  C  shifts 
from  C  to  D,  giving  these  transactions  the  operation  and 
effect  of  an  ordinary  springing  or  shifting  use.^  Yet  although 
a  power  is  not  an  estate,  the  analogy  of  a  general  power  of 
appointment  to  that  power  of  alienation  which  constitutes  the 
basis  of  ownership  has  led  to  a  rule  which  makes  such  a  power 
in  one  respect  like  an  estate.  It  is  now  settled  law  in  Eng- 
land and  some  of  the  United  States,  that  when  there  is  a 
general  power  of  appointment,  which  is  absolutely  in  the 
donee's  pleasure  to  execute  or  not,  if  he  executes  it  volunta- 
rily and  without  consideration  for  the  benefit  of  third  persons, 
the  property  which  is  the  subject  of  the  power  is  considered 
the  assets  of  the  appointor,  and  his  creditors  may  in  equity 
reach  it  and  have  it  applied  to  their  debts.'*  In  New  York, 
however,  under  the  provisions  of  the  Revised  Statutes  regard- 
ing powers,  it  has  been  held  that  the  English  rule  does  not 
apply,  and  that  the  rights  of  creditors  are  only  such  as  are 
reserved  to  them  by  those  statutes,   which  were  intended  to 

1  Tud.  Lead.  Cas.  264  ;  Wms.  Real  Prop.  245. 

2  Co.  Lit.  271  b,  Butler's  note,  231  ;  2  Flint.  Real  Prop.  545  ;  Rush  v.  Lewis, 
21  Penn.  St.  72. 

3  Tad.  Lead.  Cas.  264  ;  Watk.  Conv,  264,  Coventry's  note. 

♦  Townshend  v.  Windham,  2  Ves.  Sen.  1,  9,  10;  Ex  parte  Caswell,  1  Atk.  559, 
560;  Fleming  v.  Buchanan,  3  De  G.  M.  &  G.  976  ;  Johnson  v.  Gushing,  15  N.  H. 
298  ;  Clapp  v.  Ingraham,  126  Mass.  200  ;  Knowlos  v.  Dodge,  1  Mack.  (D.  C.)  66  ; 
Cutting  i;.  Cutting,  86  X.  Y.  522  ;  Gilman  v.  Bell,  99  111.  144  ;  2  Sugd.  Pow.  (7th 
ed.)  27  ;  Story,  Eq.  Jur.  §  176  and  note  ;  4  Kent,  Com.  339,  340. 


NATURE   AND    CLASSIFICATION    OF   POWERS.  595 

be  a  thorough  revision  of  the  law  of  powers.^  The  foregoing 
doctrine  was  held  in  England  not  to  apply  to  the  case  of  the 
execution  of  a  general  power  by  a  married  woman,  in  the 
absence  of  fraud.  ^  But  in  those  States  where  a  married  woman 
is  able  to  hold  her  property  as  her  own,  and  is  liable  to  be 
sued  for  her  debts  and  have  her  property  taken  on  execution, 
as  if  she  were  a  feme  sole,  the  rule  is  held  to  be  as  applicable 
to  her  as  to  femes  sole  or  to  men.^  The  doctrine  does  not 
apply  to  cases  in  which  the  power  has  not  been  exercised, 
although  strenuous  exertions  have  been  made  to  effect  such 
an  application  upon  the  ground  that  a  general  power  of 
appointment  is  equivalent  to  absolute  ownership  of  the 
property.'^ 

§  1655.  Po-wer  and  Estate  may  be  in  the  same  Person.  —  In 
the  case  supposed  in  tlie  preceding  paragraphs,  it  would  have 
been  equally  competent  to  have  had  the  limitation  made  to 
such  uses  as  B  should  by  deed  appoint,  and,  in  default  of  or 
until  such  appointment,  to  the  use  of  B  himself  and  his  heirs, 
instead  of  C.  And  in  that  event  B  might  either  appoint  the 
estate  to  a  third  person  in  the  execution  of  his  power,  or  might 
convey  it  by  deed  to  such  third  person,  by  virtue  of  the  estate 
in  himself.^  And  yet,  if  he  acts  under  his  power,  and  appoints 
a  use  in  favor  of  such  third  person,  it  will  take  effect  as  the 
execution  of  a  power,  defeating  his  own  estate  in  himself,  and 
the  appointee  will,  in  such  case,  take,  not  under  him  or  by 
a  title  derived  from  him,  but  simply  under  and  by  virtue  of  the 
use  thus  declared  in  his  favor  to  which  the  statute  executes 
the  seisin,  and  thereby  creates  his  estate.^  This  result  grows 
out  of  a  rule  of  universal  application,  that,  when  one  takes 
an  estate  by  the  execution  of  a  power,  it  is,  to  all  intents,  as 
if  he  took  by  the  deed  which  created  the  power,  and  his  con- 

1  See  post,  §  1673. 

2  Vaughan  v.  Vanderstegen,  2  Drew.  165,  363  ;  Blatchford  v.  Woolley,  2  Dr.  & 
Sm.  20J:  ;  Shattock  v.  Shattock,  L.  R.  2  Eq.  182. 

8  Knowles  v.  Dodge,  1  Mack.  (D.  C.)  66.  Cf.  Clapp  v.  Ingraham,  126  Mass. 
200. 

*  Bainton  v.  Ward,  2  Atk.  172  ;  Holmes  v.  Coghill,  7  Ves.  499  ;  Townshend  v. 
Windham,  2  Ves.  Sen.  1  ;  Oilman  v.  Bell,  99  111.  150. 

s  Wms.  Real  Prop.  251  and  note ;  Logan  v.  Bell,  1  C.  B.  884. 

6  Watk.  Conv.  268,  Coventry's  note  ;  Roach  v.  Wadham,  6  East,  289 ;  Wms. 
Real  Prop.  251. 


596  POWERS. 

veyance  had  been  inserted  in  that,  instead  of  coming  to  him 
mediately  through  the  one  holding  the  power.  And  the  test 
of  the  validity  of  the  estates  raised  by  appointment  is  to  place 
them  in  the  deed  creating  the  power  in  lieu  of  the  power 
itself ;  meaning  to  waive  for  the  present  all  questions  as  to 
the  time  to  which  such  conveyance  by  means  of  a  power 
relates,  whether  to  the  creation  or  execution  of  the  power.^ 
On  the  other  hand,  if,  in  the  case  supposed,  the  one  having 
such  power  and  estate  in  himself  were  to  convey  his  estate 
without  reference  to  his  power,  the  power  would  thereby  be 
extinguished,  and  could  not  be  executed  in  derogation  of  his 
own  conveyance  ;  or  if  a  part  only  of  his  interest  were  con- 
veyed, his  power  would  be  suspended  as  to  such  interest,  leav- 
ing him  full  authority  to  execute  it,  provided  he  do  nothing  to 
impair  his  own  conveyance.^ 

§  1656.  How  Trust  created  by  Execution  of  Power.  —  If,  in 
the  case  supposed,  B,  instead  of  appointing  the  use  to  D,  when 
the  statute  executes  the  seisin  in  D,  and  so  creates  a  legal 
estate  in  him,  had  appointed  the  use  to  D  and  his  heirs,  to  the 
use  of  E  and  his  heirs,  inasmuch  as  there  cannot  be  a  use 
executed  upon  a  use,  the  effect  would  have  been  to  leave  the 
legal  estate  still  in  D,  who  would  hold  the  same  in  trust  for 
E,  by  force  of  the  rules  of  equity  in  such  a  case.^ 

§  1657.  Collateral  Powers. — From  the  circumstance  that  a 
power  may  be  given  to  one  who  has  an  interest  in  the  lands 
in  respect  to  which  the  power  is  to  be  executed,  or  may  be 
given  to  one  who  is  a  stranger  to  the  estate,  and  that  the 
result  is  the  same  when  the  power  is  executed  upon  the  estate 
which  is  subject  to  it,  arises  a  classification  of  powers  into  two 
kinds ;  namely,  such  as  are  collateral,  and  such  as  are  not. 
If  the  one  who  has  the  power,  commonly  called  the  donee  of 

1  Bringloe  v.  Goodson,  4  Bing.  N.  C.  726  ;  Doe  d.  Coleman  v.  Britain,  2  Barn. 
&  Aid.  93  ;  Mosley  v.  Mosley,  5  Ves.  256  ;  2  Flint.  Real  Prop.  545  ;  Sugd.  Pow. 
260;  Watk.  Conv.  264,  Coventry's  note  ;  4  Kent,  Com.  337  ;  Co.  Lit.  113  a;  Brad- 
ish  V.  Gibbs,  3  Johns.  Ch.  550  ;  Doolittle  v.  Lewis,  7  Johns.  Ch.  45. 

2  "Wms.  Real  Prop.  251  ;  Hay  v.  Mayer,  8  Watto,  203  ;  Den  d.  Nowell  v.  Roake, 
5  Barn.  &  C.  720 ;  Burt.  Real  Prop.  §  179  ;  4  Cruise,  Dig.  227  ;  Goodright  v.  Cator, 
Doug.  477. 

8  Wms.  Real  Prop.  246-267;  Co.  Lit.  271  h,  Butler's  note,  231,  §  3,  pi.  4; 
4  Cruise,  Dig.  220. 


NATURE    AND    CLASSIFICATION    OP   POWERS.  597 

the  power,  has  no  estate  in  the  land,  the  power  is  said  to  be 
a  collateral  or  naked  power.^ 

§  1658.  Powers  appendant.  —  There  is  besides  a  subdivision 
of  the  class  of  powers,  which  are  held  by  a  donee  who  has 
some  estate  in  the  land,  into  powers  appendant  and  powers  in 
gross.  Powers  appendant  are  such  as  the  donee  is  authorized 
to  execute  out  of  the  estate  limited  to  him,  and  depend  for 
their  validity  upon  the  estate  which  is  in  him.  He  is  thereby 
able  to  create  an  estate  which  will  attach  on  an  interest 
actually  vested  in  him.  The  illustration  given  by  Mr.  Sugden 
is  of  a  life-estate  limited  to  a  man  with  a  power  to  grant 
leases  in  possession,  which  must  in  every  case  have  its  opera- 
tion out  of  his  estate  during  his  life.^ 

§  1659.  Powers  in  Gross  are  such  as  One  who  has  an 
estate  in  land  has,  to  create  such  estates  only  as  will  not 
attach  on  tlie  interest  limited  to  him,  or  take  effect  out  of  his 
own  interest.  The  illustration  of  Hale,  Ch.  B.,  of  such  a 
power,  is  where  a  tenant  for  life  has  a  power  to  create  an 
estate  which  is  not  to  begin  until  his  own  ends.  It  is  a  power 
in  gross,  because  the  estate  for  life  has  no  concern  in  it.^ 
Another  illustration  would  be  this  :  By  a  marriage  settlement, 
the  husband,  prior  to  the  marriage,  conveyed  the  estate  to 
trustees  for  his  use  during  life;  and  if  his  wife  survived  him, 
to  her  use  during  life,  and  then  to  such  children  of  theirs  and 
their  heirs  as  he  by  his  will  should  direct,  when  the  trust  was 
to  cease.  The  marriage  took  place,  and  they  had  children. 
It  was  held,  that,  beyond  his  life-estate,  the  husband  had  no 
estate  in  the  land,  but  a  mere  naked  power  of  appointment; 
and  unless  he  executed  that,  the  estate  would  pass  to  the  issue 
and  their  heirs  in  equal  shares,  upon  the  ground  that  where  a 
trust  is  created  in  a  marriage  settlement,  if  there  is  no  special 
agreement  to  the  contrary,  it  is  intended  to  make  provision  for 
the  issue  of  such  marriage.* 

1  Sugd.  Pow.  (ed.  1856)  107  ;  Edwards  v.  Sleater,  Hardr.  415,  per  Hale,  C.  B.  ; 
Tud.  Lead.  Cas.  286  ;  Bergen  v.  Bennett,  1  Gaines,  Cas.  15  ;  Oilman  v.  Bell,  99  111. 
144. 

2  Sugd.  Pow.  (ed.  1856)  107  ;  Edwards  i-.  Sleater,  Hardr.  416  ;  Bergen  v.  Bennett, 
1  Caines,  Cas.  15,  per  Kent,  J.;   Burt.  Real  Prop.  §  179. 

3  Sugd.  Pow,  114  ;  Edwards  i;.  Sleater,  Hardr.  416;  Burt.  Real  Prop.  §180; 
Wilson  V.  Troup,  2  Cow.  236 ;  Tud.  Lead.  Cas.  293;  Watk.  Couv.  260. 

*  Gorin  v.  Gordon,  38  Miss.  214. 


598  POWERS. 

§  1660.  Powers  appendant  —  Illustrations.  —  This  doctrine 
of  powers  appendant  may  be  further  illustrated  and  explained 
in  the  matter  above  mentioned  of  creating  leases.  It  is  hardly 
necessary  to  say,  that  at  common  law  a  tenant  for  life  could 
not  create  a  lease  which  should  extend  beyond  the  term  of  his 
own  estate.  But  it  is  common,  in  making  settlements  of  estates, 
to  authorize  the  one  who  is  to  have  the  estate  for  his  life  to 
make  leases  thereof  for  a  certain  number  of  years,  generally 
twenty-one,  by  way  of  use.  Now,  this  is  a  power  appendant. 
The  lease  takes  its  effect  out  of  the  estate  of  the  tenant  for 
life,  the  donee  of  the  power.  And  if  before  he  executes  it  he 
parts  with  his  entire  estate,  the  power  is  extinguished.  Wiien 
executed,  the  lease  takes  effect  from  the  power;  and  the 
lessee  will  have  the  same  right  to  hold  for  his  whole  term,  if  the 
tenant  for  life  die  before  his  term  expires,  as  if  he  had  derived 
his  title  to  his  term  directly  from  the  original  party  who 
created  the  life-estate  and  the  power.^  And  even  if  the  lease 
be  for  a  longer  time  than  authorized  by  the  power,  it  seems  it 
would  be  good  up  to  the  limits  of  that  period  for  which  it 
might  have  been  made.^ 

§1661.  Powers  in  Gross  —  Illustrations. — Further  illustra- 
tions of  what  would  be  accounted  powers  in  gross,  and  of  their 
nature,  would  be  found  in  cases  like  the  following ;  namely, 
where  a  tenant  for  life  had  a  power  to  appoint  the  estate  to  his 
children  after  his  decease,  or  had  a  power  to  jointure  his  wife 
out  of  the  estate  after  his  death.  So,  too,  where  the  owner 
of  a  fee  reserves  to  himself  a  power  over  the  uses  of  the  land, 
at  the  same  time  that  he  conveys  away  all  his  estate  in  it,  it 
being  sufficient,  as  it  seems,  to  give  a  power  this  character, 
that  the  one  exercising  it  either  has  an  interest  in  the  land  out 
of  which  the  use  arises,  or  in  the  use  raised  by  such  power, 
provided  the  estate  created  by  the  power  in  no  way  interferes 
with  or  takes  from  such  interest.-"^ 

^  AVms.  Real  Prop.  254,  and  Rawle's  note  ;  4  Cruise,  Dig.  157  ;  Sugd.  Pow.  (ed. 
1808)  c.  10,  §  1;  ante,  §  630  ;  Maundrell  v.  Maundrell,  10  Yes.  246  b  ;  Tud.  Lead. 
Cas.  286,  289  ;  Wilson  v.  Troup,  2  Cow.  236  ;  Ren  d.  Hall  j;.  Bulkeley,  Doug.  292  ; 
Burt.  Real  Prop.  §  177. 

2  Campbell  v.  Leach,  Ambl.  740  ;  Tud.  Lead.  Cas.  317. 

3  Burt.  Real  Prop.  §§  180-182  ;  Tud.  Lead.  Cas.  294. 


NATURE    AND    CLASSIFICATION    OF   POWERS.  599 

§  1662.    Powers,  how  affected  by  Conveyance  of  the   Land.  — 

If  the  one  having  the  power  has  also  an  interest  in  the  land 
which  is  not  to  be  affected  by  the  exercise  of  such  power,  this 
will  not  be  destroyed  by  any  conveyance  of  the  land,  except  by 
a  feoffment.  But  the  power  over  a  use  which  a  i)arty  reserves 
upon  his  grant  of  an  estate  he  may  extinguish  by  a  release. 
And  the  same,  it  seems,  is  true  of  a  power  given  to  a  stranger 
to  be  exercised  for  his  own  benefit ;  ^  whereas,  if  the  power  be 
simply  a  collateral  one,  "  which  means  that  it  is  extrinsic  and 
totally  unconnected  with  any  interest  in  the  land,"  the  donee 
of  such  a  power  cannot,  by  any  act  whatever,  extinguish  or 
release  it.^ 

§1663.  Powers  general  and  special. — Another  classifica- 
tion of  powers  is  into  general,  and  special  or  particular.  If  the 
donee  is  at  liberty  to  appoint  to  whom  he  pleases,  it  is  a  gen- 
eral power.  If  he  is  restricted  to  an  appointment  to  or  among 
particular  objects  only,  it  is  of  the  latter,  or  special  class.^ 

§  1664.  Powers  of  Appointment  and  Revocation.  —  If  the 
power  be  to  create  a  new  estate  in  any  one,  it  is  said  to  be  a 
power  of  appointment ;  if  to  divest  or  abridge  an  existing 
estate,  it  is  called  a  power  of  revocation.  But,  as  remarked  by 
Mr.  Sanders,  every  power  of  the  kind  under  consideration  is  a 
power  of  revocation  and  new  appointment ;  for  the  new  uses 
and  estates  created  under  the  appointment  must  necessarily 
(to  the  extent  of  such  appointment)  revoke,  defeat,  or  abridge 
the  uses  which  existed  and  were  executed  previously  to  the 
new  limitation ;  and  though  sometimes  an  express  power  of 
revocation  is  limited,  prior  to  the  power  of  appointing  new 
uses,  it  is  never  necessary.*  In  Bird  v.  Christopher,  the  only 
power  given  in  the  deed  was  that  of  revocation.^  But  Mr. 
Burton  says,  that  in  such  cases,  "  if  this  be  done  upon  the 
original  conveyance,  a  power  of  appointment  is  implied ;  but  if 

1  Burt.  Real  Prop.  §§  180-182;  Edwards  v.  Sleater,  Hardr.  416  ;  Tud.  Lead. 
Cas.  294  ;  Wms.  Real  Prop.  256. 

2  Burt.  Real  Prop.  §  183.  Mr.  Chance  does  not  seem  to  approve  of  this  attempt 
to  classify  powers  into  "  collateral  "  and  "in  gross,"  and  insists  that  the  terms  are 
convertible.     Chance,  Pow.  §  34. 

8  Co.  Lit.  271  b,  Butler's  note,  231,  §  3,  pi.  4;  AYms.  Real  Prop.  255. 
*  Sand.  Uses,  154 ;   Co.  Lit.  271  b,  Butler's  note,  231,  §  3,  pi.  4 ;  Tud.  Lead. 
Cas.  264  ;  4  Kent,  Com.  415. 

5  Bird  V.  Christopher,  Styles,  389. 


600  POWERS. 

a  mere  power  of  a  revocation  be  inserted  in  an  instrument  of 
appointment,  the  exercise  of  it  can  only  restore  the  uses  of  the 
original  settlement."  ^  The  mode  in  which  this  operates  is 
this :  The  exercise  of  the  power  of  revocation  and  appointment 
extinguishes  the  use  in  the  former  holder  of  the  estate,  and 
raises  a  new  one  in  the  appointee,  to  which  the  statute  executes 
or  annexes  the  seisin  and  possession,  and  thus  creates  a  new 
estate  in  the  appointee.^ 

1  Burt.  Real  Prop.  §  185  ;  4  Cruise,  Dig.  220  ;   Wright  v.  Tallmadge,  15  N.  Y. 
307. 

2  4  Crui.se,  Dig.  219. 


SUSPENSION    OR   DESTRUCTION    OF   POWERS.  601 


CHAPTER  LXXV. 

POWERS  —  SUSPENSION    OR   DESTRUCTION   OF   POWERS. 

§  1665.  When  a  donee  may  release  a  power. 

1666.  Release  by  life-tenant  with  power  over  reversion, 

1667.  Conveyance  by  such  life-tenant. 

1668.  Powers  appendant  may  be  released. 

1669.  Powers  appendant  may  be  suspended. 

1670.  Analysis  of  illustrative  case. 

1671.  Power  may  be  executed  as  to  future  contingent  estates. 

1672.  Of  unexecuted  powers  of  revocation. 

§  1665.  When  a  Donee  may  release  a  Power.  —  111  the  first 
place,  a  mere  collateral  power  cannot  be  destroyed  or  sus- 
pended by  an  act  of  the  donee.^  And  the  same  is  true  of 
extinguishing  powers  in  gross  by  a  conveyance  of  the  donee's 
estate,  unless  they  were  reserved  by  the  grantor,  or  were  to  be 
executed  in  favor  of  the  donee  himself.^  But  powers,  whether 
appendant  or  in  gross,  may,  as  a  general  proposition,  be  re- 
leased by  the  donee  or  owner  of  the  power  to  one  having  the 
freehold  in  possession,  reversion,  or  remainder,  which  operates 
to  extinguish  them ;  for,  not  being  a  trust,  the  execution  is 
generally  optional  with  the  donee,  and  it  is  not  competent  for 
him  to  derogate  from  his  own  grant  by  doing  an  act  to  deprive 
the  person  to  whom  he  has  made  such  release  of  the  estate 
acquired  thereby.^ 

1  Digges'  case,  F.  Moore,  605  ;  Tippet  v.  Eyres,  5  Mod.  457  ;  s.  c.  2  Ventr.  110. 
That  the  mere  refusal  of  one  having  such  authority,  as  an  executor  without  interest 
to  sell,  to  execute,  does  not  disable  him  from  executing  it,  see  Tainter  v.  Clark,  13 
Met.  220  ;  Tud.  Lead.  Cas.  286,  295  ;  West  v.  Berney,  1  Russ.  &  M.  431  ;  Chance, 
Pow.  §  3105. 

2  Tud.  Lead.  Cas.  294 ;  Edwards  v.  Sleater,  Hardr.  416  ;  Burt.  Real  Prop. 
§  180;  Savile  v.  Blacket,  1  P.  Wms.  777. 

3  Tud.  Lead.  Cas.  295;  Burt.  Real  Prop.  §§  181,  182  ;  Wms.  Real  Prop.  256  ; 
Albany's  case,  1  Rep.  107  b  ;  West  j^.  Berney,  1  Russ.  &  M.  431  ;  Chance,  Pow. 
§§  3115,  3137. 


602  POWERS. 

§  1666.  Release  by  Life-tenant  with  Power  over  Reversion. 
—  But  in  one  case,  where  a  father  having  a  fund  for  life,  with 
remainder  to  his  children  in  such  shares  as  he  should  appoint, 
and,  in  default  of  appointment,  to  the  children  equally,  made  a 
release  of  the  power  for  the  purpose  of  vesting  in  himself  the 
share  of  a  child  that  had  deceased,  and  whose  executor  he 
was,  the  court  refused  to  give  present  effect  to  the  release  so 
far  as  it  operated  to  vest  such  share  in  him,  although  the 
power  was,  in  fact,  extinguished  by  the  release.^  And,  as  a 
general  proposition,  if  the  duty  of  the  donee  requires  him  to 
exercise  a  power  at  any  future  time,  he  cannot  extinguish  it 
by  a  release. 2 

§  1667.  Conveyance  by  such  Life-tenant.  —  In  accordance 
with  the  foregoing  doctrine,  that  a  power  in  gross  cannot  be 
released,  it  has  been  held  that  a  tenant  for  life,  with  a  power 
of  appointment  as  to  the  reversion,  or  of  revocation  as  to  a 
remainder,  may  execute  his  power,  though  he  may  have  aliened 
his  own  life-estate.^  And  where  an  estate  was  settled  to  the 
use  of  H  for  life,  remainder  to  the  children  of  H,  with  a  power 
in  trustees  to  sell  the  estate  during  the  life  of  H,  at  his  request, 
H  having  conveyed  his  estate,  requested  the  trustees  to  con- 
vey to  his  grantee,  who  did  so  ;  and  it  was  held  to  be  a  good 
execution  of  the  power,  as  H,  by  his  deed,  did  nothing  in 
derogation  of  the  estate  of  such  grantee  to  be  derived  from  the 
trustees.* 

§  1668.  Powers  appendant  may  be  released.  —  But  where 
the  power  comes  within  the  class  of  appendant  powers,  as 
above  defined,  it  is  competent  for  the  donee  to  suspend  or 
extinguish  it  constructively  by  his  own  act,  or  he  may  extin- 
guish it  by  a  separate  formal  release.  Thus,  if  the  tenant  for 
life,  having  a  power  to  lease,  conveys  his  entire  estate,  his 
power  is  extinguished.^  So  if  lands  are  settled  on  one  with  a 
power  of  appointment  to  uses,  and  upon  him  in  fee  if  he  fail 
to  appoint,  he  may  alien  the  estate  as  his  own,  and  will  thereby 

1  Cunynghame  v.  Thurlow,  1  Russ.  &  M.  436,  n. 

2  Wms.  Real  Prop.  256  ;  Chance,  Povv.  §  3121. 

8  Tud.  Lead.  Cas.  294  ;  Burt.  Real  Prop.  §  176;  Chance,  Pow.  §  3172. 
*  Alexander  v.  Mills,  L.  R.  6  Ch.  App.  124. 

6  Ren  d.  Hall  v.  Bulkeley,  Doug.  291,  292  ;  Penne  v.  Peacock,  Cas.  temp.  Talb. 
43;  Chance,  Pow.  §§  3157,  3159;  Tud.  Lead.  Cas.  260;  Burt.  Real  Prop.  §  175. 


SUSPENSION   OR   DESTRUCTION    OF   POWERS.  603 

defeat  and  extinguish  his  power.  Nor  docs  it  make  any  dif- 
ference in  the  result,  whether  the  alienation  is  by  the  act  of  the 
donee  of  the  power,  or  of  the  law.  Accordingly,  where  a 
tenant  under  a  limitation  like  that  above  stated  became  bank- 
rupt, it  was  held  that  the  transfer  in  bankruptcy  divested  him 
of  his  entird  estate,  and  the  power  of  appointing  the  remainder 
was  extinguished.^ 

§  1669.  Powers  appendant  may  be  suspended ;  as  where  a 
tenant  for  life,  with  a  power  of  appointment  and  revocation, 
instead  of  conveying  his  whole  estate,  demised  the  land  for 
ninety-nine  years,  if  he  should  live  so  long,  to  secure  an  an- 
nuity, it  was  held  that  he  could  not,  by  afterwards  executing 
the  power,  defeat  this  demise,  it  having  been  made  for  a  good 
consideration.  The  power  was  thereby  suspended.^  So  a 
power  of  revocation  and  appointment  may  be  partially  sus- 
pended as  to  its  taking  effect,  as  where  one,  having  an  interest 
in  land  with  a  power  of  appointment,  leased  the  land.  Al- 
though he  could  not,  by  afterwards  executing  his_  power, 
defeat  his  lease,  the  power  was  held  to  be  suspended  in  its 
taking  effect  to  the  extent  of  the  lease  only,  and  that  the 
appointment  was  good  for  all  beyond  that.^ 

§1670.  Analysis  of  Illustrative  Case. — The  foregoing  prop- 
ositions may  be  further  illustrated  by  analyzing  one  of  the 
cases  above  cited,  in  which  a  tenant  for  life  had,  by  will,  a 
power  to  lease  for  twenty-one  years,  and  by  the  same  will  the 
executor  had  a  power  to  mortgage  in  fee  or  for  years.  The 
tenant  made  a  demise  of  the  land  for  ninety-nine  years,  if  he 
should  live  so  long,  and  then  demised  it  under  his  power  for 
twenty-one  years.  Subsequently,  the  executor  executed  the 
power  to  mortgage,  by  a  lease  for  one  thousand  years.  The 
mortgagee  sued  the  lessee  under  the  lease  for  twenty -one  years, 
for  rent  which  he  claimed  as  reversioner.     The  tenant  in  de- 

1  Burt.  Real  Prop.  §  177  ;  Wms.  Real  Prop.  251  ;  Tud.  Lead.  Cas.  290  ;  Doe 
d.  Coleman  v.  Britain,  2  Barn.  &  Aid.  93 ;  Chance,  Pow.  §  3155  ;  Maundrell  v. 
Maundrell,  10  Ves.  246.  See  Hershey  v.  Meeker  Co.  Bank,  71  Minn.  255  ;  s.  c.  73 
N.  W.  Rep.  967. 

'^  Tud.  Lead.  Cas.  287  ;  Goodright  v.  Gator,  Doug.  477  ;  Bringloe  v.  Goodson, 
4  Bing.  N.  C.  734. 

3  Yelland  v.  Ficlis,  F.  Moore,  788 ;  Snape  v.  Turton,  Cro.  Car.  472  ;  Wms. 
Real  Prop.  251 ;  Tud.  Lead.  Cas.  288 ;  Wilson  v.  Troup,  2  Cow.  237. 


604  POWERS. 

fence  set  up  the  prior  lease  of  ninety -nine  years,  and  contended 
that  the  granting  of  that  lease  was  a  suspension  of  the  power 
to  lease  for  twenty-one  years  during  the  first  term  of  ninety- 
nine  years.  This  first  lease  took  effect  out  of  the  life-estate 
of  the  tenant  for  life,  and  not  out  of  his  power,  and  so  there 
was  then  a  reversion  in  him.  Had  the  question  of  priority  of 
right  hcen  between  the  lessee  for  ninety-nine  years  and  the 
lessee  for  twenty-one  years,  in  the  absence  of  any  estate  created 
by  the  execution  of  the  executor's  power,  the  former  must 
prevail,  since  the  lessor  could  not  by  his  second  lease  prejudice 
the  one  claiming  under  the  first.  But  regarding  the  leases 
which  were  executed  under  the  powers  of  executor  and  tenant 
for  life  by  themselves,  in  their  relation  to  each  other,  they 
were  to  be  considered  as  if  made  by  and  contained  in  the  will 
which  created  the  powers.  And  therefore,  as  between  the 
lessee  under  the  power  in  the  tenant  for  life  and  the  lessee 
under  the  power  in  the  executor,  the  last,  being  later  in  point 
of  time,^was  to  be  regarded  as  assignee  of  the  reversion  of  the 
first,  and  entitled  to  the  rent.  The  two  leases,  one  for  twenty- 
one  and  the  other  for  one  thousand  years,  are  to  be  regarded 
as  if  made  by  the  will  itself,  the  latter  being  as  to  the  former 
in  the  light  of  a  reversion,  and  as  such  giving  the  latter  lessee 
the  common  law  right  to  the  rent  of  the  prior  lease.  The 
tenant  for  life,  moreover,  so  far  as  he  had  a  riglit  to  make  the 
lease  of  ninety-nine  years,  held  this  subject  to  these  powers  to 
lease  and  mortgage  created  by  the  will,  and  his  lease  for 
ninety-nine  years  was  accordingly  subordinate  to  them.  Nor 
could  the  lease  for  ninety-nine  years  in  a  stranger  be  set  up 
against  this  claim,  for  the  making  of  that  did  not  suspend  the 
power  in  the  life-tenant  to  lease  for  twenty-one  years,  which, 
therefore,  was  good  as  to  every  one  except  to  override  the 
term  for  ninety-nine  years,  and  was  consequently  good  as  to 
the  appointee  of  the  executor  under  his  power  to  mortgage.^ 
But  so  far  as  the  execution  of  the  power  would  operate  to 
defeat  an  estate  which  the  donee  had,  for  a  valuable  considera- 
tion, created  out  of  his  own  estate  or  interest,  as,  for  instance, 
by  the  lessee  for  the  twenty-one  years  setting  up  his  lease 
against  the  lessee  for  ninety-nine  years,  the  law  suspends  the 

1  Bringloe  v.  Goodson,  4  Bing.  N.  C.  726. 


SUSPENSIOX    OR   DESTRUCTION    OF   POWERS.  605 

power  in  order  to  prevent  any  one  from  working  a  fraud  or 
injustice. 1 

§  1671.  Power  may  be  executed  as  to  Future  Contingent 
Estates.  — It  is  no  obstacle  in  the  way  of  executing  a  power 
that  the  estate  thereby  to  be  created  cannot  be  innncdiatcly 
enjoyed,  or  even  be  a  vested  estate  at  the  time  of  the  execu- 
tion ;  nor  would  such  a  state  of  things  of  itself  operate  to  defer 
or  suspend  the  execution  of  a  power.  Thus  where  an  estate 
was  limited  to  S.  for  life,  remainder  to  her  son  and  his  heirs, 
but  if  he  died  in  her  lifetime  without  issue,  then  to  such  per- 
son as  S.  should  appoint,  it  was  held,  that,  if  S.  made  this 
appointment  in  the  lifetime  of  the  son,  it  would  be  a  good 
one,  and  would  take  effect  upon  and  in  event  of  the  son's 
dying  in  her  lifetime  without  issue.^  But  still  the  appoint- 
ment should  be  immediately  to  the  use  of  the  person  who  is 
intended  to  take  beneficially  under  the  proposed  execution  of 
it,  as  otherwise  the  estate  created  might  be  left  in  another's 
hands,  and  the  one  intended  to  be  benefited  only  have  an 
equitable  use  in  it.^ 

§  1672.  Of  Unexecuted  Powers  of  Revocation.  —  But  though 
an  existing  unexecuted  power  of  revocation  and  appointment 
may  operate  to  defeat  an  existing  estate  in  the  present  holder 
of  the  land,  though  holding  under  the  instrument  creating 
the  power,  whenever  the  donee  of  the  power  may  see  fit  to 
execute  it,  it  is  not  deemed  in  law  to  render  the  estate  of  such 
holder  a  contingent  one,  but  this  is  to  all  intents  a  vested 
estate,  though  liable  to  be  divested  by  the  execution  of  the 
power.  And  such  would  be  the  character  of  a  remainder 
limited  after  an  estate  for  life,  though  the  tenant  for  life  were 
clothed  with  a  power  of  appointing  remainders,  and  the  former 
remainders  over  were  limited  by  the  deed  creating  the  power, 
to  the  person  named  in  default  of  such  appointment,  by  the  ten- 
ant for  life.     It  would  be  a  vested  and  not  a  contingent  estate.* 

1  4  Cruise,  Dig.  221. 

2  Dalby  v.  Pullen,  2  Bing.  144  ;  Tud.  Lead.  Cas.  546  ;  Chance,  Pow.  §  402. 
8  Co.  Lit.  271  b,  Butler's  note,  231,  §  3,  pi.  4. 

*  Doe  d.  Willis  v.  Martin,  4  T.  R.  39  ;  Chance,  Pow.  §  2749  ;  Osbrey  v.  Bury, 
1  Ball  &  B.  53  ;  Watlc.  Conv,  268,  Coventry's  note  ;  Braman  v.  Stiles,  2  Pick.  460  ; 
Fearne,  Coiit.  Pem.  226;  Cox  v.  Chamberlain,  4  Ves.  631;  4  Cruise,  Dig.  146; 
Gorin  v.  Gordon,  38  Miss.  214. 


606  POWERS. 


CHAPTER   LXXYI. 

POWERS  —  APPLICATION   OF   POWERS    IN   AMERICAN    AND 
ENGLISH    LAW. 

§  1673.  Provisions  of  the  Xew  York  law. 

1674.  Same  subject,  continued. 

1675.  Courts  of  law  governed  by  equity  rules. 

1676.  Power  implied  to  appoint  to  inheritable  use. 

1677.  Implied  restriction  to  life  appointment. 

§  1673.  Provisions  of  the  New  York  Law.  — As  powers  have 
been  chiefly  made  use  of  in  effecting  family  settlements  which 
are  comparatively  infrequent  in  this  country,  they  have  been 
rarely  applied,  though  fully  recognized  here  as  forming  a  part 
of  the  American  law.  It  therefore  becomes  necessary  to  know 
something  of  the  subject  as  a  branch  of  general  jurisprudence, 
in  order  to  apply  some  parts  of  the  legislation  of  the  country. 
Thus,  in  New  York,  it  is  declared  that  a  devise  of  lands  to 
executors  or  trustees  to  be  sold  or  mortgaged,  where  these 
are  not  to  receive  the  rents,  shall  vest  no  estate  in  the  trus- 
tees, "but  the  trust  shall  be  valid  as  a  power,  and  the  lands 
shall  descend  to  the  heirs  or  pass  to  the  devisees  of  the  tes- 
tator, subject  to  the  execution  of  the  power. '^  Powers  under 
marriage  settlements  are  favorably  construed  and  applied  in 
the  equity  courts  of  Mississippi. ^ 

§  1674.  Same  Subject.  —  So,  many  trusts  are  by  the  New 
York  statute  declared  to  be  powers,  no  estate  vesting  in  the 
trustees;  and  the  third  article  of  the  Revised  Statutes  of  New 
York,  from  the  seventy-third  to  the  one  hundred  and  thirty- 
fifth  sections,  is  devoted  to  the  subject  of  powers,  but  is 
too  extended  to  admit  of  being  incorporated  into  a  treatise 
like  this.      Thus  it  is  held,  that,   if  A  grants  land  to  B  in 

1  New  York  Stat,  at  Large,  vol.  1,  p.  678,  §  56  ;  Lalor,  Real  Est.  180. 
8  Gorin  t;.  Gordon,  38  Miss.  210. 


APPLICATION    OF   POWERS    IN    AMEPJCaN   AND    ENGLISH    LAW.      607 

trust  for  such  person  as  C  shall  appoint,  it  is  a  valid  power 
in  trust  under  this  statute,  by  which,  as  a  mere  trust,  it  is 
void,  and  creates  no  estate  in  the  trustee,  inasmuch  as  there 
is  no  duty  for  him  to  do  as  to  the  estate.  But  if  C  were  to 
make  an  appointment  in  favor  of  any  one,  the  power  vested 
by  deed  in  the  trustee  would  become  operative  in  him  to  con- 
vey the  estate  to  the  appointee.  But  in  the  case  cited  below, 
C  having  died  without  executing  the  power  of  appointment, 
the  whole  conveyance  failed,  and  the  estate  remained  in  the 
grantor  unchanged,  but  discharged  of  the  power.  ^  The  stat- 
utes of  New  York  in  regard  to  powers  have  been  substantially 
re-enacted  in  Michigan,  Wisconsin,  Minnesota,  North  Dakota, 
and  South  Dakota. ^ 

§  1675.  Courts  of  Law  governed  by  Equity  Rules.  —  Courts 
of  law,  wherever  powers  are  recognized  as  existing  under  the 
statute  of  uses,  adopt  in  respect  to  them  the  rules  which  pre- 
vailed in  equity  before  that  statute,  and  they  are  thus  capable 
of  being  made  the  means  of  defeating,  modifying,  transferrins:, 
and  varying,  in  every  imaginable  manner,  any  or  all  of  the 
equitable  interests  which  a  conveyance  may  have  originally 
described  and  limited.^ 

§  1676.  Power  implied  to  appoint  to  Inheritable  Use.  —  It  is 
accordingly  held  that,  if  the  intention  is  clear,  a  power  may 
enable  one  to  make  disposition  of  a  fee,  although  no  words  of 
inheritance  are  used ;  as,  where  a  testator  gives  a  power  to 
sell  lands,  the  donee  may  sell  the  inheritance,  because  the 
testator  gave  the  same  power  which  he  himself  had.*  "Where 
an  estate  is  given  absolutely  to  such  uses  as  a  person  shall 
appoint,  without  any  prior  limited  estate,  it  is  an  estate  in 
fee.^  And  this  extends  to  deeds  as  well  as  to  wills,  by  which 
powers  of  appointment  are  created.  There  is  little  if  any 
difference  in  the  construction  of  deeds  and  wills  on  this  point. 

1  Hotchkiss  V.  Elting,  36  Barb.  38. 

2  Mich.  Annot.  Stat.  1882,  §  5590  ct  seq. ;  Wis.  Annot.  Stat.  1889,  §  2101 
et  seq. ;  Minn.  Stat.  1891,  §  4030  et  seq.;  N.  Dak.  Rev.  Codes,  1895,  §  3402  et  seq.; 
S.  Dak.  Annot.  Stat.  1899,  §  3724  et  seq. 

3  Right  d.  Basset  v.  Thomas,  3  Burr.  1446;  Burt.  Real  Prop.  §  125  ;  2  Flint. 
Real  Prop.  544  ;  Ren  d.  Hall  v.  Bulkeley,  Doug.  292. 

*  1  Sugd.  Pow.  476 ;  Wilson  v.  Troup,  7  Johns.  Ch.  34,  35 ;  4  Cruise,  Dig. 
136. 

^  Langham  v.  Nenny,  3  Ves.  467. 


608  POWERS. 

A  general  power  in  a  deed,  as  well  as  in  a  will,  to  limit  "any 
estate  or  estates,"  will  authorize  the  limitation  of  a  fee  or  any 
less  estate.^  Thus,  where  by  will  a  testator  devised  his  lands 
to  his  wife  for  life,  "and  then  to  be  at  her  disposal,"  provided 
she  disposed  of  it  after  her  death  to  any  of  her  children,  it  was 
held  she  had  an  estate  for  life,  and  might  by  will  create  a  fee 
in  any  of  her  children  to  whom  she  should  appoint  the  estate. ^ 
In  deeds,  however,  technical  expressions  are,  in  some  cases, 
absolutely  necessary,  so  that  they  cannot  be  supplied  by 
others.  So  that,  in  the  cases  above  supposed,  the  one  execut- 
ing the  power  of  creating  an  estate  should  define,  by  proper 
terms  of  limitation,  whether  it  was  a  fee  or  a  less  estate,  and 
what  estate  it  was  intended  to  be.  In  wills,  technical  expres- 
sions are  never  necessary.  ^ 

§  1677.  Implied  Restriction  to  Life  Appointment.  —  But  if 
the  power  is  to  appoint  to  such  "  persons  "  as  the  donee  may 
choose,  it  authorizes  only  a  life-estate.* 

1  Chance,  Pow.  §§  1207,  1208  ;  Liefe  v.  Saltingstone,  1  Mod.  190. 

2  Dighton  V.  Toralinson,  Comyns,  194  ;  s.  c.  1  P.  Wms.  171. 
8  Co.  Lit.  271  b,  Butler's  note,  231. 

*  2  Flint.  Real  Prop.  549. 


HOW  POWERS   MAY   BE   CREATED.  609 


CHAPTER   LXXVII. 

POWERS  —  HOW   POWERS   MAY   BE   CREATED. 

§  1678.  How  created. 

1679.  How  created  by  reservation. 

1680.  No  precise  form  of  words  requisite. 

1681.  Necessary  to  distinguish  between  power  and  estate. 

1682.  Power  and  estate  and  naked  power  may  exist  as  to  same  land. 

1683.  Difficulty  confined  to  wills. 

1684.  How  to  distinguish  naked  power  from  one  coupled  with  estate. 

§  1678.  How  created.  —  Powers  may  be  created  by  deed  or 
by  will.  They  may  be  given  to  the  grantee  to  be  exercised 
over  lands,  etc.,  granted  or  conveyed  at  the  time  of  the  crea- 
tion of  the  power,  or  they  may  be  reserved  to  the  grantor.^ 

§  1679.  How  created  by  Reservation.  —  If  reserved,  the 
reservation  may  be  either  in  the  body  of  the  deed,  or  by  means 
of  an  indorsement  made  thereon  before  its  execution,  or  by  a 
deed  of  the  same  date  with  the  settlement,  and  there  need  be 
no  counterpart  to  the  deed.^  And  it  may  be  remarked,  though 
perhaps  not  coming  strictly  under  the  head  of  the  creation  of 
powers,  that  though,  if  a  power  is  contained  in  a  deed  limit- 
ing an  estate  to  A  to  such  uses  as  he  should  appoint,  and,  in 
default  of  appointment,  to  himself  in  fee,  it  was  formerly 
much  discussed  whether  the  power  was  not  merged  in  the  fee, 
it  is  now  settled  that  it  is  not,  and  that  a  general  power  of 
appointment  may  coexist  with  the  absolute  fee  in  the  donee 
of  a  power.  ^ 

§  1680.  No  Precise  Form  of  Words  is  requisite  in  creating 
a  power.     It  is  sufficient  if  the  words  indicate  an  intention 

1  Watk.  Conv.  258,  and  Coventry's  note;  Burt.  Real  Prop.  §§  123,  172; 
4  Kent,  Com.  319. 

2  1  Sugd.  Pow.  (ed.  1856)  158. 

8  1  Sugd.  Powd.  (ed.  1856)  105  ;  Maundrell  v.  Maundrell,  10  Ves.  255-257  ; 
4  Greenl.  Cruise,  Dig.  241,  n. ;  6  Greenl.  Cruise,  Dig.  490. 
VOL.  II.  —  39 


610  POWERS. 

to  reserve  or  give  the  power.  And  this  applies  both  to  cases 
of  powers  created  by  deed  and  by  will.^ 

§  1681.  Necessary  to  distinguish  between  Po-wer  and  Estate. 
—  But  it  becomes  often  exceedingly  important  to  discriminate 
between  the  terms  which  create  a  power,  and  those  which 
would  confer  an  interest  upon  one ;  the  difference  being,  so 
far  as  the  party  who  ultimately  derives  a  title  to  the  estate  is 
concerned,  that  in  the  latter  case  he  takes  immediately  from 
the  donee  of  the  power  and  interest,  in  the  former  from  the 
grantor  himself,  the  donee  being  the  medium  through  whom 
the  estate  is  created.  Mr.  Chance,  in  the  third  chapter  and 
third  section  of  his  work  on  Powers,  has  collected  a  large 
number  of  cases  wherein  this  distinction  has  been  exemplified, 
the  most  numerous  of  which,  perhaps,  have  arisen  under  de- 
vises by  which  executors  are  directed  to  sell  the  lands  of  the 
testator.  But  these  cases  are  too  numerous  to  be  repeated 
here.  The  same  may  be  said  of  what  the  reader  will  find  in 
Mr.  Sugden's  work  on  Powers,  and  the  notes  to  the  American 
edition  of  1856,2  vvhere  the  American  cases  are  also  collected. 
It  will  be  sufficient  for  the  present  to  state,  that  the  question 
in  the  several  cases  turns  altogether  upon  the  intention  of  the 
grantor  or  devisor,  as  expressed  in,  or  to  be  gathered  from, 
the  whole  will  or  deed.^ 

§  1682.  Power  and  Estate  and  Naked  Power  may  exist  as 
to  same  Land.  —  In  Bloomer  v.  Waldron,  the  court  say  :  "  There 
is  no  difficulty  in  seeing  that  a  man  may  have  a  power  coupled 
with  an  interest  as  to  one  estate,  and  a  naked  power  as  to 
another  estate  in  the  same  land.  For  instance,  the  same  in- 
strument may  give  him  power  to  sell  a  term  for  years  and  take 
the  purchase-money  for  his  own  use,  with  power  to  sell  the 
reversion  for  the  benefit  of  another.  The  latter  would  be  none 
the  less  a  naked  power  because  the  former  vested  a  title  in 
the  donee.  "^ 

1  1  Sugd.  Pow.  118. 

2  1  Sugd.  Pow.  (ed.  1856)  120-134  and  notes. 

3  i  Kent,  Com.  819  ;  Peter  v.  Beverly,  10  Pet.  532  ;  Ladd  v.  Ladd,  8  How.  10  ; 
Jackson  d.  Bogert  v.  Schauber,  7  Cow.  187  ;  Walker  v.  Quigg,  6  Watts,  87  ;  Jack- 
son d.  Ellsworth  v.  Jansen,  6  Johns.  73  ;  Sharpsteen  v.  Tillou,  3  Cow.  651  ;  Jame- 
son V.  Smith,  4  Bibb,  307. 

*  Bloomer  v.  Waldron,  3  Hill,  361,  365. 


HOW    POWERS    MAY   BE    CREATED.  611 

§  1683.  Difficulty  confined  to  "Wills.  —  Where  it  appears 
that  the  intention  of  a  testator  in  creating  a  power  has  been 
answered,  the  power  itself  will  cease  ;^  and  as  technical  words 
are  so  essential  to  the  creation  of  estates  by  deed,  and  their 
import  is  so  generally  understood,  a  question  rarely  arises 
upon  a  deed,  whether  the  party  takes  an  actual  estate  or  not. 
Such  questions  usually  relate  to  wills. ^ 

§  1684.  How  to  distinguish  Naked  Power  from  one  coupled 
with  Estate.  —  One  test  that  is  given  in  some  of  the  cases 
for  distinguishing  a  naked  power  from  one  coupled  with  an 
interest  is,  whether  the  donee  of  the  power  is  to  have  posses- 
sion of  that  to  which  his  power  relates.  If  he  is,  he  is  con- 
sidered to  have  an  interest,  otherwise  a  mere  naked  power.  ^ 
Where  an  executor,  guardian,  or  other  trustee  is  invested 
with  the  rents  and  profits  of  land,  with  a  power  of  sale  for 
the  use  of  another,  it  is  still  an  authority  coupled  with  an 
interest,   and  would  survive.* 

1  Jackson  d.  Ellsworth  v.  Jansen,  6  Johns.  73  ;  Sharpsteen  v.  Tillou,  3  Cow. 
651. 

2  Sugd.  Pow.  (ed.  1856)  153. 

8  Clary  v.  Frayer,  8  Gill  &  J.  403  ;  Gray  v.  Lynch,  8  Gill,  403.     See  post,  §  1713. 
*  Peter  v.  Beverly,  10  Pet.  533. 


612  POWERS. 


CHAPTER  LXXVIII. 

POWERS  —  BY   WHOM   AND   HOW   A   POWER   MAY   BE   EXECUTED. 

§  1685.  Who  may  execute  a  power. 

1686.  Execution  by  foreign  executor  of  donee. 

1687.  What  law  governs. 

1688.  Law  strict  as  to  mode  of  execution. 

1689.  Illustrations. 

1690.  Power  to  sell,  and  its  implications. 

1691.  Power  to  appoint  to  children. 

1692.  Power  to  appoint  to  "issue." 

1693.  Of  certain  common  law  powers. 

1694.  Execution  of  power  of  appointment :   how  it  operates. 

1695.  Of  the  seisin  requisite  to  serve  a  power. 

1696.  Appointor  a  mere  instrument. 

1697.  Appointee  takes  nothing  from  appointor. 

1698.  Execution  need  not  contain  express  reference  to  power. 

1699.  Example  of  appointee  taking  under  original  deed. 

1700.  Intention  of  appointor  a  matter  of  construction. 

1701.  Execution  of  power  identical  with  creation  of  use. 

1 702.  When  a  power  may  be  delegated. 

1703.  Execution  by  assignee  or  devisee. 

1704.  Execution  where  more  than  one  donee. 

1705.  When  powers  to  two  or  more  donees  survive. 

1706.  Of  powers  to  executors  to  sell. 

1707.  Death  of  trustee  with  power. 

1708.  Powers  implying  person.al  confidence. 

1709.  Powers  to  persons  as  a  class. 

1710.  Of  imperative  powers  to  executors. 

1711.  Testamentary  power  considered  a  trust  in  equity. 

1712.  Eevocability  of  powers. 

1713.  What  is  a  power  coupled  with  an  interest. 

1714.  Power  coupled  with  interest  assignable. 

1715.  When  the  donee  may  and  when  he  must  execute  the  power. 

1716.  Of  the  donee's  dominion  over  the  property. 

1717.  When  donee's  deed  passes  his  own  estate  or  executes  his  power. 

§1685.  Who  may  execute  a  Power.  —  Any  person  who  is 
competent  to  dispose  of  an  estate  of  his  own  may  execute  a 
power  over  land.^     If  a  power  is  simply  collateral,  an  infant 

1  1  Sugd.  Pow.  (ed.  1856)  181  ;  4  Kent,  Com.  324. 


BY    WHOM    AND    HOW    A    POWER   MAY   BE    EXECUTED.         613 

may  execute  it.  ^  And  2^  feme  covert  may  execute  a  power, 
whether  collateral,  appendant,  or  in  gross,  the  concurrence  of 
her  husband  being  in  no  case  necessary.  She  may  even  exe- 
cute it  in  favor  of  her  husband. ^  It  makes  no  difference 
whether  the  power  was  granted  to  her  before  or  after  she 
became  a  married  woman.  The  consent  of  her  husband  is 
unnecessary  in  either  case.^  And  the  power  may  be  coupled 
with  an  interest,  as  where  an  interest  in  land  with  a  power  of 
appointment  is  given  to  a  married  woman  to  her  sole  and 
separate  use,  or  is  given  so  that  by  statute  it  is  her  separate 
property.*  But  the  power  must  be  exercised  by  her  in  the 
mode  appointed  by  the  instrument  giving  the  power.  The 
statutes  enabling  women  to  hold  their  separate  estate  with 
full  power  of  disposal  do  not  alter  this  rule.^ 

§  1686.  Execution  by  Foreign  Executor  of  Donee.  —  In 
Doolittle  V.  Lewis,  a  mortgagor,  living  in  New  York,  made 
a  mortgage  of  lands  lying  in  New  York,  to  his  creditor  in 
Vermont,  containing  a  power  of  attorney  to  him,  his  execu- 
tors, administrators,  or  assigns,  to  sell  the  premises  upon 
default  of  payment.  The  mortgagee  having  died,  his  admin- 
istrator, appointed  by  a  court  of  Vermont,  proceeded  to  sell 
the  mortgaged  estate ;  and  the  question  was,  if  such  adminis- 
trator could  execute  such  power,  when  he  could  not  prosecute 
any  suit  in  the  State  of  New  York  by  virtue  of  letters  of 
administration  granted  in  Vermont.  The  Chancellor  held 
the  sale  good,  on  the  ground  that  the  administrator  answered 
the  description  of  the  person  to  whom,  by  the  convention 
of  the  original  parties,  the  power  was  committed,  and  its  exer- 
cise was  a  matter  of  contract  which  did  not  involve  the  ques- 

1  4  Kent,  Com.  325.  If  the  power  is  to  be  executed  by  will,  as  an  infant  can- 
not make  a  will,  it  seems  he  cannot  execute  the  power.     Sugd.  Pow.  (ed.  1856)  211. 

2  1  Sugd.  Pow.  182  ;  4  Kent,  Com.  325  ;  Ladd  v.  Ladd,  8  How.  27  ;  Rush  v. 
Lewis,  21  Penn.  St.  72,  where  the  wife  under  a  power  appointed  an  estate  to  her 
husband  by  last  will,  this  was  held  to  vest  the  legal  estate  in  him.  Doe  d.  Blom- 
field  V.  Eyre,  3  C.  B.  578 ;  s.  c.  5  C.  B.  741  ;  Bradish  v.  Gibbs,  3  Johns.  Ch.  523  ; 
Hoover  i;.  Samaritan  Soc,  4  Whart.  445  ;  Barnes  v.  Irwin,  2  Dall.  201  ;  Leavitt  v. 
Pell,  25  N.  Y.  474  ;  Wright  v.  Tallmadge,  15  N.  Y.  307  ;  Wood  v.  Wood,  L.  K.  10 
Eq,  Cas.  220. 

3  Sugd.  Pow.  181,  183 ;  4  Kent,  Com.  324. 

*  Armstrong  v.  Kerns,  61  Md.  364  ;   Banks  v.  Sloat,  69  Ga.  330. 
5  Breit  v.  Yeaton,  101  111.  242. 


614  POWERS. 

tion  of  jurisdiction  of  the  Vermont  court  in  appointing  an 
administrator  to  act  in  another  State.  The  title  of  the  pur- 
chaser was  the  same  as  if  it  had  been  created  by  the  original 
deed.i 

§  1687.  "What  Law  governs.  —  The  law  of  the  situs  of  the 
subject  of  the  power  controls  the  execution  of  the  power.^ 

§  1688.  Law  strict  as  to  Mode  of  Execution.  —  That  the  exe- 
cution of  a  power  may  be  valid,  the  law  is  exceedingly  strict 
in  requiring  a  precise  compliance  with  the  direction  of  the 
donor,  as  expressed  in  his  deed  or  will ;  though,  as  hereafter 
explained,  equity  sometimes  interposes  to  give  validity  to  a 
defective  execution  of  a  power.  The  law  itself  prescribes  no 
particular  ceremonies  to  be  observed  in  the  execution  of  a 
power,  unless  it  is  to  be  by  will,  in  which  case  the  requisite 
formalities  of  attestation  must  be  complied  with.  The  terms 
of  the  power  may  direct  it  to  be  exercised  by  a  note  in  writ- 
ing, or  by  will,  or  its  execution  may  be  clogged  with  any 
ceremonies  which  the  caprice  of  the  one  creating  it  may  see 
fit  to  impose;  all  of  which  must  be  strictly  complied  with, 
however  unessential  or  unimportant  they  may  appear  in 
themselves  to  be.^ 

§  1689.  Illustrations.  —  A  power  to  a  husband  and  wife 
cannot  be  executed  by  the  survivor;^  and  a  power  to  appoint 
by  deed  cannot  be  executed  by  will,  nor  vice  versa.^  If,  how- 
ever, the  power  be  a  general  one,  it  may  be  executed  in  either 
way;  and  if  it  is  to  be  executed  by  "any  writing,"  or  "any 
instrument,"  it  may  be  by  will.^  In  certain  cases,  however, 
equity  will  aid  the  defective  execution  of   powers.'      It  was 

1  Doolittle  V.  Lewis,  7  Johns.  Ch.  45,  48.  See  Hutchins  v.  State  Bk.,  12  Met. 
425,  where  the  court  say,  "  Whethei'  the  law  would  go  to  that  extent  here,  may 
perhaps  be  questioned." 

2  Bingham's  App.,  64  Penn.  St.  345. 

8  Watk.  Conv.  262,  263,  Coventry's  note  ;  1  Sugd.  Pow.  (ed.  1856)  211  ;  Hab- 
ergham  v.  Vincent,  2  Ves.  Jr.  231 ;  Longford  v.  Eyre,  1  P.  Wms.  740  ;  Breit  v. 
Yeaton,  101  III.  242.  See  Hawkins  v.  Kent,  3  East,  410,  430,  where  several  illus- 
trations will  be  found  in  the  cases  cited.  Wms.  Real  Prop.  247,  249  ;  1  Sngd.  Pow. 
(ed.  1856)  250,  278  ;  Andrews  v.  Roye,  12  Rich.  546  ;  Bentham  v.  Smith,  Chev.  Eq. 
33. 

<  "Watk.  Conv.  261,  and  Coventry's  note  ;  Ex  imrte  Williams,  1  Jac.  &  W.  93. 

6  "Wilks  V.  Burns,  60  Md.  64. 

8  "Wright  V.  Wakeford,  17  Ves.  454  a. 

'  See  post,  §  1727  et  seq. 


BY    WHOM    AND    HOW   A    POWER   MAY    BE    EXECUTED.         615 

held  in  one  case,  that  where  the  power  was  required  to  be  exer- 
cised by  a  writing,  "under  hand  and  seal  attested  by  wit- 
nesses," it  was  not  enough  that  witnesses  actually  attested  it: 
in  order  to  be  valid,  the  attestation  clause  of  the  deed  should 
state  that  it  was  so  attested,^  and  this  was  afterwards  re- 
affirmed. ^  But  in  a  more  recent  case,  the  former  decisions 
seem  to  be  overruled,  and  an  actual  attestation  will  be  suffi- 
cient, though  not  stated  to  be  done  as  such  in  an  attestation 
clause.^  And  such  seems  to  be  recognized  as  the  law  in  the 
United  States,  and  the  fact  of  the  witnesses  having  attested 
the  instrument  may  be  established  aliunde.^ 

§  IGOO.  Power  to  sell,  and  its  Implications.  —  Ordinarily  a 
power  to  sell  does  not  confer  a  power  to  mortgage.^     Where 

1  Wright  V.  Wakeford,  supra. 

2  Wright  V.  Barlow,  3  Maule  &  S.  512. 

8  Vincent  v.  Bishop  of  Sodor  and  Man,  .5  Exch.  683  ;  Burdett  v.  Spilsbury, 
6  Mann.  &  G.  386.     See  Wms.  Real  Prop.  248. 

*  Ladd  V.  Ladd,  8  How.  30-40. 

6  Stronghill  v.  Anstey,  1  De  G.  M.  &  G.  645  ;  Bloomer  v.  Waldron,  3  Hill,  361  ; 
Hirschman  v.  Brashears,  79  Ky.  258  ;  1  Sugd.  Pow.  (ed.  1856)  513.  Though  a 
power  to  sell  and  raise  money  implies  a  power  to  ilo  this  by  mortgage,  while  a  power 
generally  "  to  raise  the  sum  out  of  the  estate  is  an  authority  to  sell."  1  Sugd.  Pow. 
513  ;  4  Kent,  Com.  331 ;  Leavitt  v.  Pell,  25  N.  Y.  474  ;  Zane  v.  Kennedy,  73 
Penn.  St.  182.  "  An  absolute  and  unrestrained  power  to  sell  includes  a  power  to 
mortgage."  It  seems  to  be  still  an  open  question,  in  every  case,  upon  its  particu- 
lar circumstances,  whether  a  power  to  sell  includes  a  power  to  mortgage,  the  test 
being  the  intention  of  the  donor  of  the  power  as  gathered  from  the  instrument 
creating  the  power.  If  the  purposes  of  the  power  are  such  that  a  mortgage  would 
answer  them  better  than  a  sale,  as  where  the  object  is  to  pay  debts  or  raise  por- 
tions, the  courts  will  generally  construe  the  power  so  as  to  admit  of  a  mortgage. 
Loebenthal  v.  Raleigh,  36  N.  J.  Eq.  169.  In  New  York,  a  power  to  sell  does  not 
include  a  power  to  mortgage,  unless  something  more  is  added,  showing  that  the 
power  of  sale  is  meant  to  include  a  power  to  mortgage.  Bloomer  v.  Waldron.  supra. 
In  New  .Jersey,  such  a  power  was  held  not  to  allow  a  mortgage,  although  given  to 
executors  who  were  directed  to  carry  on  the  testator's  brewery  business  after  his 
death.  Ferry  v.  Laible,  31  N.  J.  Eq.  566.  When  the  gift  was  to  A  of  so  much  of 
the  testator's  estate  "  as  may  be  sufficient  for  his  comfortable  maintenance  and  sup- 
port for  his  life,  he  having  full  power  to  sell  and  convey  any  and  all  of  the  real 
estate,  at  any  time,  if  necessary  to  secure  such  maintenance,"  it  was  held  that  the 
power  to  sell  did  not  include  a  power  to  mortgage  in  fee.  Hoyt  v.  Jaques,  129 
Mass.  286.  When  the  power  was  "  And  I  hereby  authorize  and  empower  'A'  to 
sell  and  dispose  of  any  of  the  property  hereby  bequeathed  in  this  will,  when  it  shall 
appear  to  him  to  be  advisable  so  to  do,  having  an  eye  to  the  support  and  education 
of  the  children,  "  it  was  held  not  to  authorize  a  mortgage.  Stokes  v.  Payne,  58 
Miss.  614.  The  power  to  sell  does  not  include  a  power  to  exchange  land  for  some 
other  valuable  thing,  e.  g.  a  patent  right.     Hampton  v.   Moorhead,  62  Iowa,    91  ; 


616  POWERS. 

the  power  was  in  A  to  appoint  by  will  how  the  estate,  after 
her  death,  should  be  distributed  among  her  children,  it  was 
held  that  she  had  no  power  to  sell  the  estate,  or  authorize  any 
other  person  to  sell  the  same.  Nor  can  a  power  to  appoint 
by  will  be  executed  by  a  deed.^  And  where  the  power  is  to 
sell  for  a  specific  sum,  it  means  a  cash  sale,  and  not  one  for 
approved  notes,  unless  there  is  something  in  the  power  or 
usage  of  trade  to  manifest  a  different  intention.^ 

§  1G91.  Power  to  appoint  to  Children.  —  So  ordinarily  a 
power  to  appoint  to  children  does  not  authorize  an  appoint- 
ment to  grandchildren.^  So  a  power  to  appoint  to  children 
alone,  and  executed  by  appointment  to  trustees  to  A,  who 
was  a  child,  or  to  his  children,  in  their  discretion,  was  held 
to  be  bad  as  an  appointment,  and  a  provisional  appointment  to 
B,  another  child,  took  effect.*  In  some  extraordinary  cases, 
however,  where  there  were  no  children,  circumstances  have 
been  held  strong  enough  to  indicate  an  intention  on  the  part 
of  the  one  who  created  the  power  to  include  grandchildren 
under  the  general  term  children.^ 

§1692.  Power  to  appoint  to  "Issue."  —  But  "issue"  is  a 
term  broad   enough   to   embrace    all    descendants,  unless   it 

Ringgold  V.  Ringgold,  1  Harr.  &  Gill,  11  ;  Cleveland  v.  State  Bank,  16  Ohio  St. 
236.  It  has  been  held  in  New  York,  that  as  by  the  statutes  of  that  State  a  con- 
veyance may  be  made  without  any  covenant,  therefore  the  power  to  sell  does  not 
include  power  to  insert  covenants  in  the  deed.  Ramsey  v.  Waudell,  32  Hun,  482. 
A  power  to  sell  given  to  executors  implies  a  power  to  look  after  the  property  until 
it  is  sold,  so  as  to  authorize  them  to  pay  expenses  of  superintendence,  necessary  re- 
pairs, insurance,  and  taxes  out  of  the  rents.  Howard  v.  Francis,  30  N.  J.  Eq.  444. 
It  is  said  in  Earle  v.  New  Brunswick,  38  N.  J.  L.  ."lO,  that  executors  having  a 
power  to  sell  land  may  divide  it  into  lots  and  lay  out  streets  through  it,  and  thus 
create  easements  of  way  over  the  land  in  favor  of  the  purchasers,  if  this  plan  is  for 
the  benefit  of  the  estate  ;  and  this  rule  was  adopted  in  Re  Sixty-seventh  Street,  60 
How.  Pr.  264  ;  and  it  was  further  held  that  the  executors  might,  in  pursuance  of 
this  plan,  and  under  the  power,  assent  to  the  taking  of  some  of  the  land  by  the 
city  as  a  public  highway. 

1  Alley  V.  Lawrence,  12  Gray,  375  ;   Moore  v.  Dimond,  5  R.  I.  130. 

2  4  Kent,  Com.  331  ;  Ives  v.  Davenport,  3  Hill,  373. 

'  2  Sugd.  Pow.  (ed.  1856)  253,  and  note  of  American  cases  ;  4  Kent,  Com.  345  ; 
Horwitz  V.  Norris,  49  Penn.  St.  217  ;  Thorington  v.  Hall,  111  Ala.  323  ;  s.  c.  21 
So.  Kep.  335  ;  s.  c.  56  Am.  St.  Rep.  54. 

4  Wallinger  v.  Wallinger,  L.  K.  9  Eq.  301. 

6  2  Flint.  Keal  Prop.  550  ;  Tud.  Lead.  Cas.  306,  307  ;  4  Kent,  Com.  345,  note  ; 
Wythe  V.  Thurlston,  Anibl.  555. 


BY   WHOM    AND    HOW   A    POWER   MAY  BE    EXECUTED.         617 

is  liuiited  to  children  by  the  connection  in  which  it  is 
used.^ 

§1693.  Of  Certain  Common  Law  Powers.  —  A  power  given 
by  a  will  or  by  virtue  of  a  legislative  act  is,  as  a  general  prop- 
osition, a  common  law  authority.  Thus  where  one  by  will 
gave  certain  legacies,  and  gave  the  residue  of  all  his  estate  to 
certain  persons  named,  but  gave  his  executors  a  power  to  sell 
the  estate  and  give  deeds  to  convey  the  same,  it  was  held  that 
they  might  do  so,  and  divide  the  proceeds,  although  there  was 
an  express  gift  of  the  estate  itself  to  the  devisees  named. ^  So 
is  a  power  of  attorney,  by  which  one  acts  in  the  name  and 
stead  of  another.^  But  it  is  not  of  such  powers  that  this  work 
is  intended  to  treat,  but  only  of  such  powers  as  derive  their 
force  and  effect  from  the  statute  of  uses,  though  it  has  some- 
times been  held  that  powers  created  by  a  last  will  may  come 
within  this  class.* 

§  1694.  Execution  of  Power  of  Appointment :  how  it  oper- 
ates. —  With  this  restriction  as  to  the  nature  of  the  powers 
here  considered,  it  is  important  to  bear  in  mind  that  an 
appointment  under  a  power  operates  not  as  a  conveyance  of 
the  land  itself,  but  as  a  creation  or  substitution  of  a  use  to 
which  the  statute  annexes  the  seisin.^  It  is  therefore  alwa\s 
necessary,  when  reating  a  power,  to  raise  or  create  a  seisin 
in  some  one  which  shall  be  ready  to  serve  the  use  when 
created  by  such  appointment;  and,  to  that  end,  the  seisin 
which  is  raised  for  the  purpose  must  be  commensurate  with 
the  estates  authorized  to  be  created  under  the  power.  If  an 
estate  were  therefore  conveyed  to  A,  to  such  uses  as  B 
should  appoint,  B  could  appoint  no  greater  estate  in  the  use 
than  the  estate  in  A ;  and  if  the  latter  were  for  life  only,  B 
could  not  appoint  to  C  in  fee.^ 

1  Wythe  V.  Thurlstou,  Ambl.  555  ;  Freeman  v.  Parsley,  3  Ves.  421  ;  2  Flint. 
Real  Prop.  550. 

2  Crittenden  v.  Fairchild,  41  N.  Y.  289  ;  Kinnier  v.  Rogers,  42  N.  Y.  531. 
8  1  Sugd.  Pow.  (ed.  1856)  1,  171,  174. 

*  1  Sugd.  Pow.  (ed.  1856)  171,  note,  240  ;  Chance,  Pow.  §  100. 

5  2  Flint.  Real  Prop.  545  ;  Co.  Lit.  271  b,  Butler's  note,  231,  §  3,  pi.  4  ;  4  Cruise, 
Dig.  220  ;  2  Crabb,  Real  Prop.  725. 

6  1  Sugd.  Pow.  (ed.  1856)  175  ;  Gilb.  Uses,  Sugd.  ed.  127,  n.  ;  1  ^Vood.  Conv. 
498  ;  4  Kent,  Com.  323. 


618  POWERS. 

§  1695.  Of  the  Seisin  requisite  to  serve  a  Power.  —  The 
matter  of  seisin  as  connected  with  powers  in  wills  perhaps 
can  be  as  readily  disposed  of  by  an  extract  from  Mr.  Sugden's 
work  on  Powers  as  in  any  other  way:  "Where,  therefore,  a 
seisin  is  raised  by  the  will,  and  it  operates,  the  appointment 
will  create  a  use,  and  there  cannot  be  a  use  upon  a  use.  But 
where  there  is  no  seisin  to  serve  the  power,  but  the  testator 
devises  at  once,  for  example,  that  A  shall  sell,  upon  a  sale  to 
B  the  latter  takes  by  force  of  the  will;  and  as  the  will  itself 
might  have  raised  a  seisin  to  serve  uses,  so  it  may  be  said  the 
testator  may  authorize  such  seisin  to  be  created,  and  therefore, 
if  such  an  intention  is  shown  or  can  be  collected  from  the 
power,  uses  may  be  declared  of  B's  seisin.  The  case  appears 
to  resolve  itself  into  the  intention  of  the  creator  of  the 
power. "  1 

§  1696.  Appointor  a  Mere  Instrument. —  "Powers,"  he  adds, 
"under  wills  and  deeds,  are  both  distinguishable  from  a  power 
to  convey  under  a  letter  of  attorney.  The  estates  raised  by 
the  execution  of  a  power,  whether  it  be  created  by  a  deed  or 
will,  take  effect  as  if  limited  in  the  instrument  creating  the 
power.  "2  It  may  be  added  from  the  same  authority,  that, 
"in  case  of  a  deed  creating  a  power,  the  seisin  or  interest  to 
serve  the  estate  is  actually  raised  by  the  deed  itself,  and  the 
estates  limited  under  the  power  accordingly  derive  their 
essence  from  that  seisin. "  ^  The  appointor  is  merely  an  in- 
strument; the  appointee  is  in  by  the  original  deed.* 

§  1697.  Appointee  takes  nothing  from  Appointor.  —  The 
appointee  takes  in  the  same  manner  as  if  his  name  had  been 
inserted  in  the  power,  or  as  if  the  power  and  instrument 
executing  the  power  had  been  expressed  in  that  giving  the 
power.  He  does  not  take  from  the  donee  as  his  assignee. ° 
This  was  held  in  one  case  where  the  deed  of  appoint- 
ment was  executed  nine  years  after  the  deed  creating  the 
power.  ^ 

1  1  Sugd.  Pow.  (ed.  1856)  240.     See  2  Prest.  Abst.  347. 

2  1  Sugd.  Pow.  (ed.  1856)  242. 
8  1  Sugd.  Pow.  (ed.  1856)  242. 

*  Watk.  Conv.  271  ;  Doolittle  v.  Lewis,  7  Johns.  Ch.  45. 

6  2  Crabb,  Real  Prop.  726,  741  ;  2  Sugd.Pow.  (ed.  1856)  22  ;  2  Prest.  Abst.  275. 

6  Biaybrooke  i;.  Atty.-Gen.,  9  H.  L.  Ca.s.  150,  166. 


BY   WHOM    AND    HOW    A    POWER   MAY   BE   EXECUTED.         G19 

§  1G98.  Execution  need  not  contain  Express  Reference  to 
Power.  —  Altliongli,  in  executing  a  power,  tlie  deed  or  will 
should  regularly  refer  to  it  expressly,  and  it  is  usually  recited, 
yet  it  is  not  necessary  to  do  this,  if  the  act  shows  that  the 
donee  had  in  view  the  subject  of  the  power  at  the  time.^ 
The  courts  are,  as  a  general  thing,  more  inclined  than  for- 
merly to  treat  the  disposition  of  an  estate  by  will  as  an  execu- 
tion of  a  power  on  the  part  of  the  testator,  where  he  has  such 
a  power,  although,  in  terms,  it  be  a  devise  of  his  own  estate. 
By  the  English  statute  of  7  Wm.  IV.  and  1  Vict.  c.  26,  §  27, 
such  a  devise  will  be  taken  to  be  in  execution  of  such  a  power 
unless  a  contrary  intention  appear  in  the  will.  The  two  fol- 
lowing cases  may  illustrate  the  application  of  these  two  differ- 
ent rules.  In  one,  a  widow  was  authorized  by  her  husband's 
will  to  devise  the  estate  by  her  will  to  their  children,  as  she 
should  deem  best.  She  devised  it,  but  treated  it  in  her  will 
as  her  own  estate,  making  no  reference  to  the  power  in  the 
husband's  will,  and  it  was  held  not  to  be  a  good  execution  of 
the  power. 2  In  the  other,  the  testatrix  created  a  trust  by 
conveying  her  estate  to  trustees  to  hold  for  her  benefit  during 
her  life,  and,  upon  her  decease,  to  convey  it  to  such  person  as 
she  should  by  her  last  will  designate;  or,  upon  her  dying 
intestate,  to  her  heirs  at  law.  By  her  last  will,  she  devised 
the  estate  without  any  reference  to  its  being  in  execution  of 
this  power.  But  the  court  held  it  to  be  a  good  execution  of 
the  power,  and  therefore  so  far  passed  the  estate  that  the 
trustees  were  decreed  to  convey  according  to  the  devise.  The 
English  cases  are  reviewed  by  the  court,  who  adopt  the  rule 
stated  in  Blagge  v.  Miles,  as  to  when  a  will  or  other  instru- 
ment is  to  be  construed  as  an  execution  of  a  power:  1st,  where 
there  is  a  reference  in  the  will  or  instrument  to  the  power; 
2d,  where  there  is  a  reference  to  the  property  which  is  the 
subject  on  which  it  is  to  be  executed ;  3d,  where  the  provi- 
sions in  the  will  or  instrument  executed  by  the  donee  of  the 

1  1  Wood,  Conv.  498,  n.  ;  4  Kent,  Com.  334  ;  1  Sugd.  Vow.  (ed.  1856)  232  and 
note  ;  Story,  Eq.  Jur.  §  1062  a,  and  note.  If  the  will  purports  to  be  an  execution 
of  a  power  only,  it  will  not  carry  other  property  belonging  to  the  testator,  and 
which  its  language  would  otherwise  be  broad  enough  to  include.  Beardsley  v. 
Hotchkiss,  96  N.  Y.  201. 

-  Doe  d.  Davis  v.  Vincent,  1  Houst.  416,  427. 


620  POWERS. 

power  would  otherwise  be  ineffectual  or  a  mere  nullity,  or 
would  not  have  operation  except  as  an  execution  of  the  power. ^ 
This  rule,  when  it  was  stated  by  Judge  Story,  was  accom- 
panied with  the  remarks,  that  it  did  not  include  all  the  cases, 
and  that  it  is  always  open  to  inquire  what  the  intention  is ; 
but  that  the  intention  to  execute  the  power  must  be  apparent 
and  clear,  so  that  the  transaction  is  not  fairly  susceptible  of 
any  other  interpretation. ^  An  inference  as  to  this  intention 
may  be  drawn  from  the  character  of  the  property  of  the  donee 
of  the  power.  If  his  property  not  subject  to  the  power  is  so 
small  or  of  such  a  nature  that  the  descriptions  of  property  in 
the  deed  or  will  are  meaningless  unless  construed  as  applying 
to  the  property  subject  to  the  power,  the  deed  or  will  will  be 
construed  as  an  execution  of  the  power. ^  Thus  if  one  have  a 
life-estate  in  land  and  a  power  of  appointment  in  fee,  and 
conveys  the  fee,  it  is  an  execution  of  the  power.*  If  one  have 
a  life -estate,  and  a  power  of  appointment  at  his  death,  he  is 
not  limited  to  an  appointment  by  will,  but  may  convey  the 
reversion  by  deed.^  Under  the  rule,  as  stated  in  Blagge  v. 
Miles,  the  English  decisions  were  imiform  that  a  mere  resid- 
uary clause  gave  no  sufficient  indication  of  an  intention  to 
execute  the  power ;  but  by  statute  ^  it  is  now  enacted  that  a 
general  devise  of  real  or  personal  estate  operates  as  an  execu- 
tion of  a  power,  unless  a  contrary  intention  appear  on  the 
will.  This  rule  has  been  adopted  by  the  courts  in  Massachu- 
setts, particularly  when  the  testator  has  the  ownership  and 
beneficial  use  of  the  property  as  well  as  a  power  of  disposal.'' 

1  Blake  v.  Hawkins,  96  U.  S.  326  ;  Hollister  v.  Shaw,  46  Conn.  252 ;  Amory  v. 
Meredith,  7  Allen,  397 ;  Blagge  v.  Miles,  1  Story,  426  ;  Foos  v.  Scarf,  55  Md.  301  ; 
4  Kent,  Com.  335. 

2  Blagge  V.  Miles,  supra.  See  Funk  v.  Eggleston,  92  111.  515,  where  the  rule  is 
criticised. 

3  Blake  v.  Hawkins,  98  U.  S.  326  ;  Munson  v.  Berdan,  35  N.  J.  Eq.  376  ; 
Meeker  v.  Breintnall,  38  N.  J.  Eq.  345;  Lindsley  v.  First  Chr.  Soc,  37  N.  J.  Eq. 
277  ;  White  v.  Hicks,  33  N.  Y.  383. 

*  Baird  v.  Boucher,  60  Miss.  329  ;  Yates  v.  Clark,  56  Miss.  216. 

s  Benesch  v.  Clark,  49  Md.  497.  A  will  made  previously  to  a  deed  which  gives 
the  testator  a  power  of  appointment  cannot  be  considered  an  execution  of  the 
powei',  for  although  the  will  does  not  come  into  force  till  after  the  deed  is  made, 
the  question  is  one  of  intention.     Fry's  Est.,  11  Phila.  305. 

6  7  Wm.  IV.  ;  1  Vict.  c.  26,  §  27. 

7  Amory  v.  Meredith,  7  Allen,  397  ;  Willard  v.  "Ware,  10  Allen,  267  ;  Bangs  v. 
Smith,  98  Mass.  270. 


BY   WHOM    AND    HOW   A   POWER   MAY   BE    EXECUTED.         621 

By  statute  in  some  of  the  United  States,  every  instrument 
executed  by  the  donee  of  a  power,  which  he  would  have  had 
no  right  to  execute  except  under  the  power,  is  deemed  an  exe- 
cution of  the  power ;  ^  and  in  many  States  it  is  enacted  that  a 
will  purporting  to  convey  all  the  real  estate  of  the  testator  will 
be  deemed  an  execution  of  a  power  in  the  testator,  unless  the 
contrary  intention  appears  expressly  or  by  necessary  implica- 
tion. ^  In  those  States  where  the  rule  has  not  been  changed 
by  statute  or  judicial  decision,  the  rule  as  given  in  Blagge 
V.  Miles  is  still  in  force. ^  If  the  instrument  by  which  the 
appointment  is  made  conforms  to  the  power,  a  reference  to 
the  power  will  determine  what  is  thereby  granted,  and  the 
estate  therein  intended  to  be  limited.* 

§  1699.     Example    of   Appointee    taking  under   Original  Deed. 

—  As  an  illustration  of  the  fact  that  an  appointee  takes  under 
the  original  deed,  a  husband,  though  he  cannot  convey  to  his 
wife,  may,  if  he  has  a  power  of  appointment  given  him, 
appoint  to  her  directly,  because  her  estate  arises  out  of  the 
original  seisin  of  the  grantor.  And  the  same,  mutatis 
mutandis,  would  be  true,  if  the  wife,  under  a  power,  appointed 
to  her  husband.^ 

§  1700.     Intention     of     Appointor    a    Matter    of    Construction. 

—  And  where  the  donee  has  a  general  power  of  appointment, 
as  he  may,  if  he  elects  so  to  do,  vest  a  fee  in  himself  or  any 
one  else,  it  is  apprehended  that  the  nature  of  the  estate, 
whether  a  life-estate  or  a  fee,  for  instance,  intended  to  be 
limited,  is  to  be  determined  by  the  terms  made  use  of  in  the 
instrument  executing  the  power,  according  to    the  ordinary 

1  New  York,  Rev.  Stat.  (9th  ed.)  p.  1810,  §  124  ;  Mich.,  Aniiot.  Stat.  1882, 
§  5639  ;  Wis.,  Aiinot.  Stat.  1889,  §  2149  ;  Minn.,  Stat.  1891,  §  4081. 

2  New  York,  Rev.  Stat.  (9th  ed.)  p.  1810,  §  125  ;  Hutton  v.  Benkard,  92  N.  Y. 
296 ;  Pennsylvania,  Pepper  &  Lewis'  Dig.  col.  1445,  §  39  ;  Va.,  Code  1887, 
§  2526  ;  W.  Va.,  Code  1899,  c.  77,  §  15 ;  N.  Car.,  Code  1883,  §  2143  ;  Ky.,  Stat. 
1894,  §  4845  ;  Mich.,  Annot.  Stat.  1882,  §  4642;  Wis.,  Annot.  Stat.  1889,  §  2151  ; 
Minn.,  Stat.  1891,  §  4085  ;  Cal.,  Civ.  Code  1899,  §  1330. 

8  Blake  v.  Hawkins.  98  U.  S.  326  ;  Munson  v.  Berdan,  35  N.  J.  Eq.  376 ; 
Meeker  v.  Breintnall,  38  N.  J.  Eq.  345  ;  White  v.  Hicks,  33  N.  Y.  383  ;  Drusadow 
V.  Wilde,  63  Penn.  St.  170  ;  Foos  v.  Scarf,  55  Md.  309. 

*  Jackson  d.  Hammond  v.  Veeder,  11  Johns.  169;  Beardsley  v.  Hotchkiss,  96 
N.  Y.  201  ;  Ren  d.  Hall  v.  Bulkeley,  Doug.  292  ;  2  Prest.  Abst.  272,  273,  275, 
278. 

6  2  Sugd.  Pow.  (ed.  1856)  24.    See  also  Hall  v.  Bliss,  118  Mass.  664. 


622  POWERS. 

rules  of  construction  applied  to  wills  or  deeds  declaring  or 
transferring  uses.^ 

§  1701.  Execution  of  Power  identical  w^ith  Creation  of 
^  Use.  —  So  exact  is  the  analogy,  or  rather  the  identit}^,  between 
the  creation  of  a  use  and  the  execution  of  a  power  of  appoint- 
ment to  uses,  that,  where  one  under  such  a  power  appointed  to 
B  and  his  heirs  to  the  use  of  C  and  his  heirs,  B  was  held 
to  be  the  cestui  que  use  in  whom  alone  the  use  was  executed. 
The  use  declared  in  favor  of  C  gave  him  only  an  equitable 
title  as  cestui  que  trust.^ 

§  1702.  When  a  Power  may  be  delegated.  —  If  there  is  a 
general  conveyance  to  A  to  such  uses  as  he  shall  appoint,  he 
may  delegate  the  power  to  B  by  conveying  to  such  uses  as  B 
shall  appoint; 2  though,  if  the  power  repose  personal  confi- 
dence and  trust  in  the  donee  to  exercise  his  own  judgment 
and  discretion,  he  cannot  refer  the  execution  of  the  power  to 
another,  upon  the  principle  delegatus  non  potest  delegare.^  The 
ground  upon  which  the  first  proposition  rests  is  this :  Estates 
arising  from  the  execution  of  powers  are  in  the  nature  of 
springing  uses,  and  the  seisin  which  is  to  supply  them  is  not 
disturbed  until  some  use  is  actually  raised.  Now,  as  the 
case  supposed  did  not  imply  that  there  was  any  confidence 
reposed  in  A  for  the  benefit  of  another  when  the  power  was 
created,  no  use  was  raised  by  A's  conveyance  if  this  did  not 
declare  any  final  beneficiary,  and  the  statute  was  not  called 
into  operation  until  B  designated  the  use.^ 

§  1703.  Execution  by  Assignee  or  Devisee.  —  If  a  power  be 
limited  to  a  donee  and  his  assigns,  an  execution  of  it  by  his 
assignee  will  be  good,  and  this  term  would  include  a  devisee 
of  the  donee. ^ 

§  1704.  Execution  where  more  than  one  Donee.  —  Numer- 
ous questions  have  arisen,  and  some  of  them  of  considerable 
difficulty,  in  respect  to  the  execution  of  powers  where  two  or 

1  2  Crabb,  Real  Prop.  743  j  Wms.  Real  Prop.  220. 

2  2  Prest.  Abst.  248  ;  1  Sugd.  Pow.  (ed.  1856)  229. 

8  Watk.  Conv.  265,  Coventry's  note  ;  4  Cruise,  Dig.  212  ;  1  Sugd.  Pow.  (ed. 
1856;  216. 

*  1  Sugd.  Pow.  (ed.  1856)  214  ;  Cruise,  Dig.  211  ;  Broom's  Max.  665. 

6  Watk.  Conv.  265. 

6  4  Cruise,  Dig.  211  ;  1  Sugd.  Pow.  (ed.  1856)  215. 


BY    WHOM    AND    HOW    A    POWER   MAY    BE    EXECUTED.         G23 

more  persons  are  named  as  donees.  Ordinaril}',  in  such  a 
case,  all  the  donees  must  join  in  the  execution  of  the  power. 
And  this  is  always  true  unless  the  contrary  is  expressed.^  In 
Montefiore  v.  Browne,  a  power  of  revocation  having  been 
given  to  D.  G.  and  D.  B.,  D.  B.  died  before  it  was  executed, 
it  was  held  that  D.  G.  could  not  execute  it.^ 

§  1705.  When  Po-wers  to  t^vo  or  more  Donees  survive.  — 
But  where  the  power  is  to  several  persons  having  a  trust 
capacity,  or  an  office  in  its  nature  like  that  of  the  executors 
of  a  will,  susceptible  of  survivorship,  and  any  of  them  die, 
the  power  will  survive  unless  it  is  given  to  them  nominatim, 
as  to  A  B  and  C  D,  naming  them.  In  the  latter  case,  the 
power  would  not  survive  unless  it  was  coupled  with  an  interest 
in  the  donees  of  the  power. ^  When  a  will  gives  executors  in 
their  official  capacity  a  power  to  sell,  without  naming  the 
individuals  who  are  to  be  clothed  with  such  capacity,  and  one 
of  such  executors  is  removed  from  the  office,  or  resigns,  the 
power  to  sell  survives,  and  can  legally  be  executed  by  the 
remaining  executor.^  Where  an  estate  was  devised  to  trus- 
tees with  power  to  sell,  and  authorized  the  surviving  or 
remaining  trustees,  if  either  of  them  died  or  refused  or  relin- 
quished the  trust,  to  appoint  a  person  in  his  place  as  trustee, 
by  deed,  with  the  approbation  of  the  judge  of  probate,  with 
the  same  powers  as  were  given  the  trustees  under  the  will, 
and  this  was  done  by  the  appointment  of  a  new  trustee,  the 
court  inclined  to  the  opinion  that  such  trustee  became  thereby 
vested  with  the  legal  estate  by  force  of  the  devise.  But  if  he 
did  not,  the  survivors  of  the  original  trustees  might  execute 
the  power  as  a  naked  trust. ^     But  powers  given  to  executors 

1  4  Greenl.  Cruise,  Dig.  211,  ii.  ;  Co.  Lit.  113,  Hargrave's  note,  146;  Story, 
Eq.  Jur.  §  1061  ;  Franklin  v.  Osgood,  14  Johns.  553  ;  Marks  v.  Tarver,  59  Ala. 
335  ;  Neel  v.  Beach,  92  Penii.  St.  221  ;  Wilder  v.  Ramsay,  95  N.  Y.  7. 

«  Montefiore  v.  Browne,  7  H.  L.  Cas.  261,  267. 

3  Co.  Lit.  113  «,  Hargrave's  note,  146  ;  Story,  Eq.  Jur.  §  1062  ;  Tainter  v. 
Clark,  13  Met.  220,  225  ;  Peter  v.  Beverly,  10  Pet.  564  ;  1  Sugd.  Pow.  144,  146  ; 
Loring  v.  Marsh,  27  Law  Rep.  377,  391  ;  Weimar  v.  Path,  43  N.  J.  L.  1  ;  Denton 
V.  Clark,  36  N.  J.  Eq.  534. 

*  Denton  v.  Clark,  36  N.  J.  Eq.  534  ;  Weimar  v.  Fath,  43  N.J.  L.  1  ;  Farrar  v. 
McCue,  89  N.  Y.  139  ;  Gould  v.  Mather,  104  Mass.  283. 

6  Webster  Bank  v.  Eldridge,  115  Mass.  424  ;  Ellis  v.  Boston,  H.  &  E.  R.  R.  Co., 
107  Mass.  1-13. 


624  POWERS. 

by  will  which  are  foreign  to  their  duties  as  executors  do  not 
pass  to  an  administrator  unless  the  testator's  intention  to 
that  effect  is  clear. ^ 

§  1706.  Of  Powers  to  Executors  to  sell.  —  Tn  the  case  of 
executors,  moreover,  this  nice  distinction  is  recognized  and 
prevails,  that  if  the  devise  is  to  them  to  sell  the  estate,  or  for 
it  to  be  sold,  they  take  a  trust  of  the  estate  with  a  power  to 
seU.  Whereas,  if  the  devise  is  that  the  executors  shall  sell, 
it  is  a  naked  power,  and  must  be  executed  by  all ;  while  in 
the  other  case  it  is  not  a  naked  power,  and  may  be  executed 
by  such  of  the  executors  as  execute  the  will.'-^ 

§  1707.  Death  of  Trustee  with  Power.  —  If  a  power  is  given 
by  will  to  a  trustee,  and  he  neglects  to  exercise  it,  the  execu- 
tion of  it  devolves  upon  the  court;  but  if  the  trustee  dies 
before  the  time  prescribed  for  the  execution  of  the  trust,  the 
trust  fails,  and  the  testator  is  to  be  considered  as  dying,  thus 
far,  intestate.^ 

§  1708.  Powers  implying  Personal  Confidence.  —  If  the  au- 
thority to  sell  be  given  as  a  trust  to  the  same  person  named 
as  executor,  his  resigning  his  trust  as  executor  does  not 
impair  his  power  to  sell.*  And  if  the  power  be  accompanied 
by  a  personal  confidence  and  trust  in  the  donee  or  donees,  he 
or  they  alone  can  execute  it;  nor  can  it  pass  to  others;  it 
must  be  executed  by  the  persons  named,  unless  an  authority 
to  substitute  another  be  expressly  given. ^ 

§  1709.  Powers  to  Persons  as  a  Class.  —  Where  the  power 
is  given  to  several  persons  as  a  class,  under  a  term  implying 
more  than  one  person  as  to  "trustees,"  "sons,"  "survivors," 
and  the  like,  it  may  be  executed  by  the  survivors  so  long  only 
as  there  is  more  than  one  of  them.^  This  would  not  apply 
to  executors;  for  if  the  power  is  not  to  them,  nominatim,  a 
single  survivor  of  the  number  might  act.     But  upon  the  death 

1  Ingle  I'.  Jones,  9  Wall.  486. 

2  Osgood  V.  Franklin,  2  Johns.  Ch.  19,  20  ;  Bergen  v.  Bennett,  1  Caines,  Cas. 
16  ;  Franklin  v.  Osgood,  14  Johns.  553,  562;  4  Kent,  Com.  320  ;  West  v.  Fitz, 
109  111.  425. 

8  Eay  V.  Adams,  3  Myl.  &  K.  237. 

*  Tainter  v.  Clark,  13  Met.  220,  227. 

6  Cole  V.  Wade,  16  Ves.  27  ;  Tainter  v.  Clark,  13  Met.  220,  226. 

6  1  Sugd.  Pow.  (ed.  1856)  146  ;  Story,  Eq.  Jur.  §  1062,  n. 


BY   WHOM    AND    HOW    A    POWER    MAY    BE    EXECUTED.         625 

of  an  executor,  an  administrator  with  the  will  annexed  could 
not,  as  his  successor,  execute  a  power  to  sell  lands. ^ 

§  1710.  Of  Imperative  Powers  to  Executors.  —  If  a  will 
charges  a  trust  upon  land,  and  directs  the  executors  to  execute 
it,  and  a  due  execution  of  this  requires  a  sale  to  be  made,  the 
executors  may  make  such  a  sale,  although  they  have  no  interest 
in  the  estate  beyond  doing  an  act  that  is  necessary  to  execute 
the  will.  Such  a  power  is  not  properly  a  naked  power,  which 
the  donee  may  execute  or  not  at  his  option;  it  is  coupled 
with  a  trust  or  trusts  which  require  the  execution  of  the 
power.  And  a  court  of  equity  will  not  permit  any  accident, 
neglect  of  the  donee,  or  other  cause,  to  disappoint  the  interest 
of  those  who  are  entitled  to  the  contemplated  benefit  under 

1  story,  Eq.  Jiir.  §  1062;  1  Sugd.  Pow.  (ed.  1856)  146;  Tainter  v.  Clark,  13 
Met.  220,  226.  Contra,  Drayton  v.  Grimke,  1  Bail.  Eq.  392.  Where  power  is 
given  to  an  executor  by  will  to  sell  to  ])ay  debts,  the  sale  may  be  made  by  an 
administrator  with  the  will  annexed.  See  also  Brown  v.  Arniistead,  6  Rand.  594, 
under  a  statute  of  Virginia.  The  question  whether  an  administrator  with  the  will 
annexed  succeeds  the  executor  in  a  power  to  sell  land,  is  a  question  of  the  intention 
of  the  testator.  If  the  power  is  given  to  the  testator  to  exercise  in  his  discretion, 
as  to  make  a  sale  as  he  thinks  expedient,  or  whenever  he  deems  it  expedient,  or  to 
appoint  to  such  uonunees  as  he  selects,  the  power  will  not  go  to  the  administrator, 
although  it  was  given  to  the  executor  by  virtue  of  his  office,  and  not  nominatim. 
Cooke  V.  Piatt,  98  N.  Y.  35  ;  Stoutenburgh  v.  Moore,  37  N.  J.  Eq.  63  ;  Mitchell 
V.  Spence,  62  Ala.  450  ;  Dunn's  Est.,  13  Phila.  395.  In  some  States  by  statute  the 
power,  if  not  discretionary,  passes  to  the  administrator.  Keplinger  v.  Macubbin,  58 
Md.  203  ;  Mitchell  v.  Spence,  supra;  Mott  v.  Ackerman,  92  N.  Y.  539.  In  Illinois, 
a  power  of  sale  is  said  to  be  per  se  a  personal  trust  or  confidence  reposed  in  the 
executor  by  the  testator,  and  consequently  would  not  go  to  the  administrator. 
NicoU  V.  Scott,  99  111.  537.  In  Chandler  v.  Delajdaine,  4  Del.  Ch.  503,  the  court 
held  that  such  a  power,  when  the  will  was  so  worded  that  the  power  might  not  be 
executed  till  after  the  executor's  death,  as  was  the  case,  did  not  go  to  the  admin- 
istrator, but  that  the  court  must  appoint  a  trustee  to  exercise  the  power ;  yet  for 
security  it  directed  the  administrator  to  join  in  the  deed.  In  Curran  v.  Ruth, 
4  Del.  Ch.  27,  the  testator  directed  a  sale  of  land  to  be  made,  and  appointed  A  to 
make  the  sale,  and  "in  case  of  his  refusal  and  non-acceptance  from  any  cause  he 
may  deem  sufficient,  then  the  proper  authority  shall  a[ppoint  some  suitable  person 
to  execute  the  same."  The  court  held,  that,  A  liaving  died  without  executing  the 
power,  the  administrator  with  the  will  annexed  might  execute  it.  If  the  will 
expressly  gives  the  administrator  the  same  power  to  sell  as  the  executor,  there  is 
no  question  as  to  his  ability  to  sell.  Fish  v.  Coster,  28  Hun,  64.  Where  the 
execution  of  the  power  of  sale  is  a  step  in  the  administration  of  the  estate,  as  where 
real  estate  is  to  be  converted  into  money,  and  the  money  distributed,  it  has  been 
held  that  the  administrator  takes  this  power  from  the  executor  by  virtue  of  his 
office.  Putnam  v.  Story,  132  Mass.  212.  But  see  Chandler  v.  Delaplaine,  supra. 
VOL.   II.  —  40 


626  POWERS. 

it.i  And  in  such  a  case,  the  power  survives.  But  such  a 
power  must  be  executed  by  all  the  trustees  who  are  qualified 
to  act.  It  cannot  be  delegated  to  a  stranger  or  an  attorney, 
nor  can  one  executor  act  for  the  others. ^ 

8  1711.  Testamentary  Povrer  considered  a  Trust  in  Equity. 
—  Every  power  given  in  a  will  is  considered,  in  a  court  of 
chancery,  as  a  trust  for  the  benefit  of  a  person  for  whose  use 
the  power  is  made,  and  as  a  devise  or  bequest  to  that  person.^ 

§  1712.  Revocability  of  Powers.  —  The  power  given  by  a 
letter  of  attorney  to  make  a  sale  of  lands  ceases  with  the 
death  of  the  one  who  gives  it.  It  would  simply  be  an  absurd- 
ity for  one,  assuming  to  act  as  an  attorney  of  another,  to  exe- 
cute a  deed  in  a  dead  man's  name.  So  a  power  of  attorney  is 
revocable,  although,  in  terms,  irrevocable.  But  where  the 
power  is  coupled  with  an  interest,  it  survives  the  donor,  and 
is  not  revocable  by  him  who  creates  it,  during  his  lifetime. 
The  donee  of  the  power  executes  it  in  his  own  name,  independ- 
ent of  the  existence  of  the  donor.*  And  a  power  to  sell  and 
convey  a  fee  may  be  good  and  effectual,  although  contained  in 
a  mortgage  for  life.^ 

§  1713.  What  is  a  Pow^er  coupled  -with  an  Interest.  —  A 
power  is  not  coupled  with  an  interest  merely  because  the 
donee  has,  for  instance,  an  interest  in  the  proceed  of  the  sale. 
To  make  a  power  irrevocable,  unless  expressly  declared  so, 
there  must  be  an  interest  in  the  thing  to  be  disposed  of  or 
managed.  A  sharing  in  the  profits  of  sale  is  not  enough.^ 
The  interest  must  be  in  the  land  itself  like  a  title  to  land. 
Thus  in  the  cases  oi  Bergen  v.  Bennett  and  Wilson  v.  Troup, 

1  Leeds  v.  Wakefield,  10  Gray,  517  ;  Greenough  v.  Welles,  10  Cush.  576;  Gibbs 
V.  Marsh,  2  Met.  243  ;  Bradford  v.  Monks,  132  Mass.  405. 

2  Osgood  V.  Franklin,  2  Johns.  Ch.  21;  Franklin  v.  Osgood,  14  Johns.  562, 
563  ;  Zebach  v.  Smith,  3  Binn.  69  ;  Berger  v.  Duff,  4  Johns.  Ch.  368  ;  Peter  v. 
Beverly,  10  Pet.  565  ;  Story,  Eq.  Jur.  §  1062  ;  Hertell  v.  Van  Buren,  3  Edw.  Ch. 
20;  ante,  §  1492. 

3  Hunt  V.  Rousmaniere,  2  Mason,  C.  C.  244  ;  s.  c.  8  Wheat.  207  ;  2  Sugd.  Pow. 
(ed.  1856)  158. 

*  Bergen  v.  Bennett,  1  Caines,  Cas.  15  ;  Hunt  v.  Rousmaniere,  2  Mason,  C.  C. 
249  ;  s.  c.  8  Wheat.  203  ;  Wilson  v.  Troup,  2  Cow.  236  ;  Mansfield  v.  Mansfield, 
6  Conn.  562. 

6  MacGregor  v.  Gardner,  14  Iowa,  340;  Story,  Agency,  §  476;  Sedgwick  v, 
Laflin,  10  Allen,  430. 

6  Hartley's  App.,  53  Penn.  212  ;  Mansfield  v.  Mansfield,  6  Conn.  562. 


BY   WHOM    AND    HOW   A   POWER   MAY    BE    EXECUTED.         627 

the  mortgagee  had  a  power  of  sale  which  was  held  not  to 
determine  with  the  death  or  alienation  of  the  estate  by  the 
mortgagor.  In  Hunt  v.  Rousmaniere,  Chief  Justice  Marshall 
thus  defines  what  is  meant  by  "  a  power  coupled  with  an  in- 
terest:" "Is  it  an  interest  in  the  subject  on  which  the  power 
is  to  be  exercised  ?  or  is  it  an  interest  in  that  which  is  pro- 
duced by  the  exercise  of  the  power  ?  We  hold  it  to  be  clear, 
that  the  interest  which  can  protect  a  power  after  the  death  of 
a  person  who  creates  it  must  be  an  interest  in  the  thing  itself; 
in  other  words,  the  power  must  be  ingrafted  on  an  estate  in  the 
thing."  After  stating  that  a  power  to  A  to  sell  for  his  own 
benefit  would  not  give  him  an  interest,  nor  would  it  if  his 
power  was  to  sell  for  the  benefit  of  B,  he  adds :  "  A  power  to  A 
to  sell  for  the  benefit  of  B,  ingrafted  on  an  estate  convened  to 
A,  may  be  exercised  at  any  time,  and  is  not  affected  by  the 
death  of  the  person  who  created  it.  It  is  then  a  power  coupled 
with  an  interest,  although  the  person  to  whom  it  is  given 
has  no  interest  in  its  exercise.  His  power  is  coupled  with  an 
interest  in  the  thing  which  enables  him  to  execute  it  in  his 
own  name,  and  is  therefore  not  dependent  on  the  life  of  the 
person  who  created  it.^ 

§  1714.  Po"wer  coupled  •with  Interest  assignable.  —  Such  a 
power  of  sale  may  be  assigned  to  another  person  by  a  convey- 
ance of  all  the  interest  of  the  donee  of  the  power,  and  may  be 
exercised  by  such  assignee.  But  it  is  not  susceptible  of  divi- 
sion ;  and  therefore,  if,  for  instance,  a  mortgagee  with  such  a 
power  were  to  sell  a  part  of  the  estate  mortgaged,  the  power 
remains  in  himself  alone,  and  he  only  can  exercise  it.^ 

§  1715.  When  the  Donee  may  and  -when  he  must  execute 
the  Power.  —  From  the  foregoing  propositions  and  authorities, 
certain  important  principles  are  established  in  relation  to  the 
execution  of  powers,  among  which  are,  1st.  If  the  power  be 
simply  one  in  which  no  person  is  interested  except  the  donee, 
it  is  a  matter  of  election  on  his  part  whether  to  exercise  it  or 
not.  No  court  will  interpose  to  compel  him  to  do  so.^  If 
the  power  to  create  an  estate  be  a  mere  naked  one,  a  failure 

1  Ante,  §  1682  et  seq. 

2  Wilson  V.  Troup,  2  Cow.  236,  237. 

3  1  Siigd.  Pow.  (ed.  1856)  158 ;  Sedgwick  v.  Laflin,  10  Allen,  432. 


628  POWERS. 

to  execute  the  appointment  defeats  the  estate.  Bare  powers 
are  never  imperative,  but  depend  upon  the  will  of  the  donee. 
But  if  the  power  be  a  trust,  equity  will  enforce  its  execution. 
And  if  the  donee  do  not  execute  it,  a  court  of  equity  will  not 
permit  the  estate  dependent  on  the  discharge  of  such  trust  or 
imperative  duty  to  fail  for  want  of  a  trustee,  for  his  default.  ^ 
2d.  But  if  the  power  be  coupled  with  a  trust  in  which  other 
persons  are  interested,  as  a  power  to  executors  to  sell  to  pay 
debts,  a  court  of  equity  regards  it  as  a  duty  in  the  donee,  and 
will  compel  its  execution.^  3d.  If  the  power  is  coupled  with 
an  interest,  the  execution  of  it  is  not  only  a  matter  of  right 
and  election  in  the  donee,  but  the  power  becomes  annexed  to 
the  estate,  and  passes  with  it  to  an  assignee  of  the  donee. ^ 

§  1716.  Of  the  Donee's  Dominion  over  the  Property.  —  But, 
after  all,  it  will  have  been  perceived  that  even  powers  of 
appointment,  viewed  in  regard  to  the  individuals  who  are  to 
exercise  them,  are  a  species  of  dominion  over  property  quite 
distinct  from  that  free  right  of  alienation  which  is  annexed 
to  every  estate.*  In  many  cases,  however,  a  general  power  of 
alienation  given  in  connection  with  a  gift  of  the  property  to 
the  donee  of  the  power  is  construed  by  the  courts  to  show  that 
the  intention  of  the  grantor  was  to  give  the  donee  an  estate 
in  fee-simple,  and  not  a  life-estate  in  the  property;  but  it  will 
not  be  so  construed  if  the  estate  is  expressed  to  be  for  life.^ 
[And  where  an  absolute  power  of  disposition  is  held  to  give 
the  donee  a  fee-simple,  a  limitation  over  upon  failure  to  exer- 
cise the  power  is  void  as  an  unlawful  restraint  on  the  free 
right  of  alienation.^] 

§  1717.  When  Donee's  Deed  passes  his  own  Estate  or 
executes  his  Power.  —  Instances  have  already  been  mentioned 
of  one  having  an  estate  in  lands,  and  also  a  power  to  appoint 
the  same  to  uses,  or  to  sell,  and  the  like.     In  such  cases,  if 

1  Gorin  v.  Gordon,  38  Jliss.  214,  215;  Neves  v.  Scott,  9  How.  196,  213. 

2  Story,  Eq.  Jur.  §  1062. 

3  Wilson  V.  Troup,  2  Cow.  236. 

4  Wms.  Real  Prop.  249. 

5  Cory  V.  Cory,  37  N.  J.  Eq.  198  ;  Donohugh  v.  Helme,  12  Pliila.  525 ;  Foos  v. 
Scarf,  55  Md.  301 ;  Benesch  v.  Clark,  49  Md.  497  ;  Wetter  v.  Walker,  62  Ga,  142 ; 
Jones  V.  Bacon,  68  Me.  34. 

6  Pickering  v.  Langdon,  22  Me.  413  ;  Burleigh  v.  Clough,  52  X.  H.  267 ; 
McKenzie's  Appeal,  41  Conn.  607. 


BY   WHOM    AND    HOW   A    POWER   MAY   BE    EXECUTED.         629 

he  sells  the  land  without  referring  to  his  i:)Owcr,  it  will  be 
construed  to  be  a  conveyance  of  his  interest,  and  not  an  exe- 
cution of  the  power.  The  land  passes  by  virtue  of  his  owner- 
ship.^ [And  the  same  is  true  where  the  donee  leaves  a  will 
devising  the  residue  of  his  estate  without  referring  to  the 
power,  there  being  nothing  in  the  will  from  which  the  inten- 
tion to  execute  the  power  can  be  gathered. ^J  Bat  if  he  has  no 
such  interest,  and  the  instrument  by  which  he  assumes  to 
pass  the  estate  conforms  to  the  requirements  of  the  power,  it 
will  be  deemed  to  be  an  execution  of  the  power,  though  no 
reference  to  the  power  is  made  in  such  instrument.  The 
question,  however,  in  these  cases  becomes  one  of  intent,  and 
intention  when  shown  will  govern.^ 

1  Hay  V.  Mayer,  8  Watts,  203  ;  Jones  v.  Wood,  16  Penn.  St.  25  ;  Clere's  case, 
6  Rep.  18;  1  Sugd.  Pow.  (ed.  1856)  432  ;  Den  d.  Nowell  v.  Roake,  5  Barn.  &  C. 
720  ;  Probert  v.  Morgan,  1  Atk.  440;  Co.  Lit.  271  b,  Butler's  note,  231 ;  4  Cruise, 
Dig.  212. 

2  Mason  v.  Wheeler,  19  R.  I.  21 ;  s.  c.  31  Atl.  Rep.  426 ;  s.  c.  61  Am.  St. 
Rep.  734. 

8  White  V.  Hicks,  33  N.  Y.  392,  404 ;  Blagge  v.  Miles,  1  Story,  426. 


630  POWERS. 


CHAPTER  LXXIX. 

POWERS  —  EXCESSIVE   OR   DEFECTIVE   EXECUTION   OF   POWERS. 

§  1718.  In  what  the  execution  may  be  excessive. 

1719.  Doctrine  of  cy-pres. 

1720.  Rule  applicable  to  excessive  execution. 

1721.  Acceleration  of  second  estate  because  first  void. 

1722.  The  appointment  of  a  less  estate. 

1723.  Conditions  not  authorized  by  power. 

1724.  Of  the  time  of  execution. 

1725.  Several  powers :  effect  of  priority  of  execution. 

1726.  Power  to  revoke  use  must  be  reserved. 

§  1718.  In  what  the  Execution  may  be  excessive.  —  From 
the  strictness  required  by  law  in  the  mode  of  executing  a 
power,  a  question  often  arises,  whether  a  donee  in  undertaking 
to  execute  this  power  has  not  exceeded  it ;  and  if  so,  how  far 
the  execution  is  good  within  the  limits  of  his  power.  This 
excess  may  be  in  including  objects  not  intended  to  be  embraced 
in  the  power,  or  in  the  quantity  or  amount  of  the  subject- 
matter  of  the  appointment,  or  in  imposing  conditions  in  the 
execution  of  the  power  which  it  does  not  warrant.^  The  fol- 
lowing is  an  example  of  an  excess  in  the  execution  of  a  power, 
which,  to  that  extent,  was  void  :  A  by  will  had  a  power  to 
appoint  an  estate  to  his  own  children  in  such  proportions  and 
estates  as  the  appointor  should  direct.  He  appointed  to  John 
for  life,  with  a  power  to  appoint  to  such  uses  as  he  should 
think  proper;  and,  in  default  of  such  appointment,  it  was  to  go 
to  his  heirs.  It  was  held,  that  so  much  of  the  exercise  of  this 
power  as  gave  John  a  power  to  appoint  was  excessive  and 
void.  A  could  appoint  to  the  children,  but  could  not  authorize 
these,  as  appointees,  to  appoint  further.  ^ 

§  1719.  Doctrine  of  Cy-pres.  —  A  principle  of  construction 
applicable  to  wills,  but  not  to  deeds,  called  the  doctrine  of 

1  Tud.  Lead.  Gas.  306  ;  2  Sugd.  Pow.  (ed.  1856)  55. 

2  Wickersham  v.  Savage,  58  Penn.  St.  365. 


EXCESSIVE   OR   DEFECTIVE   EXECUTION   OP   POWERS.  631 

cy-pres^  is  to  be  taken  in  connection  with  the  present  inquiry, 
and  is  this :  If  the  testator  have  a  general  intent,  which  he 
undertakes  to  carry  out  by  his  will,  and,  in  applying  this  to  the 
particular  object  expressed  in  his  will,  so  does  it  as  to  defeat 
his  general  intent,  because  the  will  cannot  operate  in  the 
manner  prescribed,  courts  will  still  so  construe  it  as  to  carry 
out  this  general  intent.  As  if,  for  instance,  a  testator  limit  an 
estate  to  the  unborn  son  of  his  son  J.,  and  after  the  death  of 
such  unborn  son  to  the  sons  of  the  latter  in  tail.  This  last 
limitation  is  too  remote  to  be  effectual  in  that  form.  But  the 
general  intent  being  to  limit  the  estate  first  to  the  unborn  son, 
and  then  to  his  issue,  the  courts  consider  the  first  limitation 
as  an  estate-tail  in  the  unborn  son,  instead  of  an  estate  for 
life,  as  the  will  declares  it  to  be.^  Upon  a  like  principle,  where 
a  testator  by  his  devise  authorized  his  executor  to  sell  his 
lands  and  to  apply  the  proceeds  in  a  way  indicated  in  his  will, 
the  sale  to  be  made  after  the  death  and  only  by  consent  of  a 
majority  of  his  children,  and  they  all  died  in  the  lifetime  of 
the  wife,  it  was  held  that  he  might  nevertheless  convey  the 
land,  it  being  a  trust-power^  the  execution  of  which  was  neces- 
sary to  the  disposal  of  the  estate,  the  condition,  in  the  judg- 
ment of  the  court,  being  annulled  by  the  death  of  the 
children. 2 

§  1720.  Rule  applicable  to  Excessive  Execution. — Now,  where 
the  doctrine  of  cy-pres  does  not  apply,  the  rule  as  to  the  ex- 
cessive execution  of  a  power  seems  to  be,  that  if  the  excess  can 
be  separated  from  what  is  within  the  legitimate  exercise  of 
the  power,  and  if  the  latter  part  is  not  made  to  depend  upon 
that  which  is  void,  or  if  the  objectionable  part  is  distinct  from 
and  independent  of  that  which  is  authorized  to  be  done,  the 
execution,  so  far  as  it  is  conformable  to  the  power,  will  be 
sustained,  and  beyond  that  will  be  void.^  Thus  where  the 
appointment  was  to  several,  a  part  of  whom  only  could  take, 
it  was  held  to  be  a  good  appointment  as  to  these.^     So  where 

1  2  Sugd.  Pow.  (ed.  1856)  60,  61  ;  Wms.  Real  Prop.  229,  230;  Robinson  i-. 
Hardcastle,  2  T.  R.  241. 

2  Leeds  v.  Wakefield,  10  Gray,  514,  519. 

8  2  Sugd.   Pow.  (ed.  1856)  62,  75;  Tad.  Lead.  Cas.  308;  Crompe  v.  Barrow, 
4  Ves.  681  ;  Warner  v.  Howell,  3  Wash.  C.  C.  12  ;  4  Cruise,  Dig.  205. 
*  Sadler  v.  Pratt,  5  Sim.  632. 


632  POWERS. 

the  power  was  to  charge  X7,000,and  it  was  executed  by  charg- 
ing £8,000,  it  was  held  to  be  good  for  the  first-mentioned 
sum.^  When  in  the  execution  of  a  power  the  requirements 
presci'ibed  in  its  creation  have  been  complied  with,  and  some- 
thing ex  ahundanti  added  which  is  improper,  the  execution  will 
be  held  good  by  the  rules  of  equity,  and  only  the  excess  will 
be  void.  But  where  there  is  not  a  complete  execution  of  a 
power,  and  the  boundaries  between  the  excess  and  the  execu- 
tion are  not  distinguishable,  it  will  be  bad.^  Thus,  if  the 
donee  is  authorized  by  his  power  to  make  a  lease  for  twenty- 
one  years,  and  he  makes  one  for  forty,  though  by  law  such 
lease  would  be  wholly  void,  equity  will  sustain  it  to  the  extent 
of  twenty-one  years.'^  But  had  the  devise  been  for  two  sepa- 
rate and  distinct  terms,  one  for  twenty-one  and  the  other  for 
nineteen  years,  neither  law  nor  equity  would  sustain  the  second, 
though  either  would  hold  the  first  to  be  good.* 

§  1721.  Acceleration  of  Second  Estate  because  First  void.  —  As 
a  general  proposition,  if,  in  executing  a  power,  an  estate  is 
limited  to  take  effect  after  a  previous  one,  and  the  limitation 
as  to  such  prior  estate  is  void,  the  time  of  the  subsequent  one 
will  be  accelerated,  and  be  as  if  the  void  limitation  had  not 
been  made  at  all.^  But  this  rule  does  not  apply  where  the 
previous  limitation  is  void  by  reason  of  its  violating  the  rule 
of  law  against  perpetuities,  as  where  the  limitation  in  execu- 
tion of  a  power  was  to  an  unborn  child,  then  to  the  children  of 
such  child,  and,  upon  failure  of  issue,  over  to  A  B.  The  child, 
in  this  case,  was  the  object  of  the  power  ;  but  the  children 
were  not,  so  that,  as  to  them,  the  execution  of  the  power  was 
void.  A  B  was  an  object  of  the  power  ;  but  as  his  estate  was 
only  to  take  effect  upon  the  failure  of  issue  of  the  child,  and 
this,  as  will  be  shown  hereafter,  was  so  remote  as  to  make  a 

1  Parker  v.  Parker,  Gilb.  Eq.  168. 

2  2  Sugd.  Pow.  (ed.  1856)  75  ;  Alexander  v.  Alexander,  2  Ves.  Sen.  640  ;  Pany 
V.  Bowen,  3  Rep.  in  Chanc.  6;  Tad.  Lead.  Cas.  317,  320;  Hay  v.  Watkins, 
3  Dru.  &  W.  339. 

8  Roe  d.  Brune  v.  Prideaux,  10  East,  158 ;  4  Cruise,  Dig.  202  ;  Sinclair  v. 
Jackson  d.  Field,  8  Cow.  581. 

*  2  Flint.  Real  Prop.  548  ;  Tud.  Lead.  Cas.  317. 

5  Fuller  V.  Fuller,  Cro.  Eliz.  422 ;  Chedington's  case,  1  Rep.  154  h ;  Goodright 
w.  Cornish,  1  Salk.  226  ;  Thornby  v.  Fleetwood,  1  Strange,  318,  369. 


EXCESSIVE   OR   DEFECTIVE   EXECUTION   OP   POWERS.  633 

limitation  dependent  upon  it  void,  it  was  held  that  the  limita- 
tion to  A  B  would  be  void  accordingly,  because  it  was  only 
intended  that  A  B  should  take  upon  the  assumption  that  the 
previous  appointees  were  capable  of  taking,  and  that  he  should 
take  only  when  they  had  failed  by  a  failure  of  issue.^  In  such 
and  similar  cases,  "  a  subsequent  limitation  under  a  will  or  an 
appointment  will  not  be  accelerated  merely  because  the  previous 
limitation  proves  bad,  but  the  whole,  so  given,  must  go  as  in 
default  of  any  appointment."  ^  Nor  does  it  make  any  difference 
that  the  objects  of  the  prior  limitation  never  came  in  esse;  the 
validity  of  the  appointment  is  referred  to  the  time  of  making  it.^ 

§  1722.  The  Appointment  of  a  Less  Estate  under  a  power 
than  what  the  donee  might  have  created  is  not  thereby  ren- 
dered invalid.^ 

§  1723.  Conditions  not  authorized  by  Power.  —  If  a  donee  of 
a  power,  in  undertaking  to  execute  it,  annex  conditions  to  the 
estate  he  creates  which  are  not  authorized  by  his  power,  the 
estate  will  be  absolute,  and  the  conditions  void.^ 

§  1724.  Of  the  Time  of  Execution.  —  As  to  the  time  when  a 
power  must  be  executed,  much  will  of  course  depend  upon  the 
nature  of  the  powers  which  a  donee  is  authorized,  by  the  in- 
strument creating  them,  to  execute.  They  may,  for  instance, 
as  in  Digges'  case,  be  to  be  executed  at  different  times  over 
different  parts  of  the  estate.  In  that  case  the  grantor  cove- 
nanted to  stand  seised  to  the  use  of  himself  for  life,  remainder 
to  the  use  of  his  son  in  tail,  with  a  proviso  that  it  should  be 
lawful  for  him  to  revoke  any  of  the  uses  or  estates,  and  to  limit 
new  uses.  It  was  held,  that  under  this  general  power  he  might 
revoke  the  uses  of  a  part  of  the  lands  at  one  time,  and  a  part 
at  another,  till  he  revoked  the  whole.^ 

1  Crompe  v.  Barrow,  i  Ves.  Jr.  681  ;  Brudenell  v.  Elwes,  1  East,  442  ;  Burt. 
Real  Prop.  §§  795,  796. 

2  Bristow  V.  Warde,  2  Ves.  Jr.  350,  Sumner's  note,  1. 

"  Gee  V.  Audlej',  cited  in  Routledge  v.  Dorril,  2  Ves.  Jr.  363.  See  also  the 
same  volume  of  reports,  page  350,  note.  And  see,  upon  the  general  subject. 
Beard  v.  Westcott,  5  Barn.  &  Aid.  801 ;  Tud.  Lead.  Cas.  308,  313  ;  2  Flint,  Real 
Prop.  549. 

*  4  Cruise,  Dig.  205. 

6  2  Sugd.  Pow.  (ed.  1856)  85  ;  Alexander  v.  Alexander,  2  Ves.  Sen.  640  ;  Tud. 
Lead.  Cas.  319. 

8  Digges'  case,  1  Rep.  174  ;  4  Cruise,  Dig.  201  ;  1  Sugd.  Pow.  (ed.  1856)  342. 


634  POWERS. 

§  1725.  Several  Powers  —  Effect  of  Priority  of  Execution.  — 
Several  powers  are  often  inserted  in  the  same  deed,  and  two 
or  more  of  them  are  to  be  executed  where  no  provision  has 
been  made  in  regard  to  their  priority.  In  such  a  case,  the 
intention  of  the  settlement  and  the  object  of  the  powers  must 
be  the  guide  as  to  the  construction.  So  the  execution  of  one 
of  two  powers  may  supersede  the  estate  first  actually  appointed, 
just  as  if  the  estate  which  supersedes  the  other  had  originally 
been  contained  in  the  settlement  creating  the  power.  And 
this  must  depend  upon  the  nature  of  the  power.i  And  it  is 
the  remark  of  Wilmot,  J.,  in  Woolston  v.  Woolston,  that  "  it 
is  the  established  practice  in  conveyancing,  when  it  is  in- 
tended that  a  power  should  be  executed  no  further,  to  release 
it."  2 

§  1726.  Po"wer  to  revoke  Use  must  be  reserved.  —  But  it 
should  be  understood,  that,  where  the  donee  of  a  power  intends 
to  revoke  the  uses  he  appoints,  he  should  expressly  reserve 
this  right  in  the  deed  executing  the  power.  If  such  reserva- 
tion be  not  made,  the  appointment  cannot  be  revoked;^  and 
this  is  especially  true  where  the  power  has  been  executed  upon 
receiving  a  valuable  consideration.  The  extent  to  which  this 
doctrine  may  be  applied  may  be  illustrated  by  the  following 
case :  Lands  were  settled  on  A.  L.  in  1794,  upon  her  marriage, 
to  the  use  of  such  person,  for  such  estate,  and  as  she  "  by  any 
deed  or  deeds,  with  or  without  powers  of  revocation  to  be 
sealed,  etc.,  or  by  her  last  will  and  testament  in  writing,  or  by 
any  writing  or  writings  in  the  nature  of  a  will,  etc.,  should 
from  time  to  time,  and  as  often  as  she  should  think  fit,  devise, 
direct,  limit,  or  appoint."  In  1830,  she  made  a  deed  reciting 
this  indenture,  and  her  intention  to  exercise  her  power  of  ap- 
pointment, and  reserving  a  power  to  revoke  the  appointment, 
and  make  any  other  appointment.  In  1833,  she  made  a  new 
deed,  reciting  the  indenture  and  deed  of  1830,  revoked  it,  and 
made  a  new  deed  of  appointment,  reserving  the  same  power  of 
revocation.  In  1835,  she  repeated  this  in  favor  of  another 
person  ;  and  in  1836  she  revoked  the  last  deed,  but  made  no 

1  4  Cruise,  Dig.  200;  2  Sugd.  Pow.  (ed.  1856)  43,  45  ;  Co.  Lit.  2716,  Butler's 
note,  231 ;  Woolston  v.  Woolston,  1  W.  Bl.  281. 

2  Woolston  V.  Woolston,  1  W.  Bl.  284. 

»  2  Sugd.  Pow.  (ed.  1856)  243  ;  Co.  Lit.  271  6,  Butler's  note,  231. 


EXCESSIVE   OR    DEFECTIVE    EXECUTION   OF    POWERS.  635 

new  appointment.  In  1848,  she  made  a  will,  reciting  it  to 
have  been  made  in  pursuance  of  the  power  created  in  her  in 
1794,  and  in  execution  of  it.  It  was  held  that  this  was  a  valid 
devise,  her  power  of  revocation  having  been  reserved  from 
time  to  time,  and  the  final  revocation  having  left  the  power 
unexhausted,  to  be  executed  as  it  stood  originally,  and  that  the 
power  might  well  be  executed  by  will.^ 

1  Saunders  v.  Evans,  8  H.  L.  Cas.  721. 


636  POWERS. 


CHAPTER  LXXX. 

POWERS — HOW   FAR   EQUITY   AIDS   THE   EXECUTION   OF   POWERS. 

§  1727.  When  equity  aids  defective  execution. 

1728.  Mode  in  which  equity  thus  interposes. 

1729.  Instances. 

1730.  Equity  will  not  aid  to  accomplish  result  forbidden  by  law. 

1731.  No  aid  where  power  of  appointment  exercised  too  late. 

1732.  The  powers  most  usually  found  in  modern  deeds  of  settlement. 

S  1727.  When  Equity  aids  Defective  Execution.  —  Although 
the  law  is  thus  strict  in  requiring  an  exact  conformity  to  the 
terms  of  a  power  when  executing  it,  equity  often  interposes  to 
correct  or  supply  a  defective  execution,  where  there  has 
been  a  substantial  compliance  with  the  terms  of  the  power. 
But  it  never  interposes  where  the  power  has  not  been  executed, 
and  only  where  the  interest  created  is  what  was  authorized 
by  the  power,  and  where  there  is  merely  a  defect  in  the 
matter  of  form,  and  the  principal  intent  of  the  donor  will  be 
accomplished  by  carrying  the  execution  into  effect.  ^  If  one 
with  a  power  to  lease  for  twenty-one  years  exceed  that  time, 
the  lease  would  be  void  at  law,  but  equity  might  hold  it 
good  pro  tanto  for  the  term  of  twenty-one  years.''' 

§  1728.  The  Mode  in  which  Equity  thus  interposes  is  by  re- 
quiring the  person  who  is  to  hold  the  estate  until  the  power 
shall  have  been  executed  to  give  it  up  in  favor  of  him  to  whom 
the  appointor  intended  to  appoint,  and  for  whom  he  took 
substantial  steps  to  that  end.^ 

§  1729.  Instances.  —  Among  the  instances  where  this  power 
has  been  exercised  by  courts  of  equity  have  been  cases  where 

1  story,  Eq.  Jur.  §  169-175  ;  2  Sugd.  Pow.  88  et  seq.  ;  Laussat's  Fonbl.  Eq. 
238,  239,  and  notes  ;  Wms.  Real  Prop.  248,  249  ;  4  Cruise,  Dig.  222  et  seq. ;  Burt. 
Real  Prop.  §  1559  ;  Wilkinson  v.  Getty,  13  Iowa,  159. 

2  Sinclair  v.  Jackson  d.  Field,  8  Cowen,  581. 
8  Wms.  Real  Prop.  248. 


HOW    FAR    EQUITY    AIDS    THE    EXECUTION    OF    POWERS.        637 

the  appointment  was  in  favor  of  creditors ;  and  the  terms  by 
which  the  power  was  created  required  three  attesting  wit- 
nesses, but  only  two  attested'  its  execution.^  So,  where  a 
similar  mistake  has  been  made,  it  has  been  exercised  in  favor 
of  a  bona  fide  purchaser. ^  So  where  there  is  a  valuable  con- 
sideration, and  by  accident  the  necessary  instrument  has 
been  imperfectly  executed,  or  the  appointment  was  by  will 
when  it  should  have  been  by  deed.^  [But  equity  will  not  aid 
where  the  execution  was  by  deed  when  it  should  have  been 
by  will.*]  In  Virginia,  in  one  case,  a  sale  made  by  one  of 
several  executors  was  sustained  upon  the  doctrine  above  stated, 
the  sale  having  been  made  under  a  power  to  sell  for  the  pay- 
ment of  debts. ^ 

§  1730.  Equity  wiH  not  aid  to  accomplish  Result  forbidden 
by  Law.  —  It  may  be  well  to  remind  the  reader  again,  in  con- 
nection with  what  has  been  said  of  the  execution  of  ])owers, 
that  the  several  estates  created  by  such  execution,  as  they 
arise,  take  their  places  in  the  settlement  in  the  same  manner 
and  order  as  would  have  been  the  case  had  each  been  origi- 
nally limited  to  the  appointee  without  the  intervention  of  a 
power.  So  that,  if  it  would  have  been  invalid  in  the  original 
settlement,  it  would  be  equally  so  as  the  offspring  of  a  power 
created  in  such  settlement.^ 

§  1731.  No  Aid  where  Power  of  Appointment  exercised  too 
late.  —  And  although  an  appointment,  when  executed,  is  re- 
garded like  a  use  created  by  the  deed  which  creates  the  power 
itself,  it  nevertheless  ordinarily  takes  its  effect  from  its 
execution^  and  not  its  creation.  The  consequence  of  this  rule 
is  often  very  important  in  its  bearing  upon  the  rights  of  indi- 
viduals. In  one  case  a  power  was  given  by  will  to  the  devisee 
to  appoint  by  deed  or  by  will  to  such  of  her  children  as  she 
chose,  and  she  appointed  by  will  to  two  who  died  in  her  life- 

1  Gilbert,  Chanc.  301  ;  2  Sngd.  Pow.  (ed.  1856)  125. 

2  Scheuck  v.  Elleuwood,  3  Edw.  Ch.  175 ;  Cotter  v.  Layer,  2  P.  Wins.  623. 

8  Hunt  V.  Rousnianiere,  2  Mason,  C.  C.  251  ;  Cotter  v.  Layer,  2  P.  Wms.  622  ; 
Toilet  V.  Toilet,  2  P.  Wms.  489  ;  Goodwin  v.  Kilsha,  Ambl.  684. 

*  1  Story,  Eq.  §  97. 

s  Roberts  v.  Stanton,  2  Munf.  129,  Roane,  J.,  dissenting  ;  contra,  M'Hae  v. 
Farrow,  4  Hen.  &  M.  444. 

6  Wms.  Real  Prop.  256  ;  Co.  Lit.  271  b,  Butler's  note,  231  ;  Commonwealth 
r.  Williams,  13  Penn.  St.  29  ;  Roach  v.  Wadliam,  6  East,  289. 


638  POWERS. 

time.  Now,  if  the  appointment  could  be  held  to  relate  back  to 
the  time  when  the  will  which  created  the  power  took  effect, 
the  estate  would  be  considered  as  vesting  in  the  two,  and  not 
defeated  by  their  death.  But  if  it  could  only  take  effect  when 
the  will  of  the  appointor  took  effect,  that  is,  upon  her  death, 
the  appointment  must  fail,  having  lapsed  by  the  death  of  the 
appointees  in  the  lifetime  of  the  appointor.  And  it  was  held, 
that  the  appointment  related  to  the  time  when  it  was  effectu- 
ally made,  and  therefore  that  the  appointment  in  this  case 
failed.^ 

§  1732.  The  Powers  most  usually  found  in  Modern  Deeds  of 
Settlement  are  those  of  raising  a  jointure  in  favor  of  a  wife 
out  of  lands  held  by  a  tenant  for  life  only,  to  lease  lands  by 
the  donee  of  the  power  beyond  the  period  of  his  own  estate, 
and  powers  of  sale  and  exchange  of  the  lands  settled  in  such 
deeds  of  settlement.  ^ 

1  Marlborough  v.  Godolphin,  2  Ves.  Sen.  61  ;  Co.  Lit.  271  b,  Butler's  note,  231, 
§  3,  pi.  4. 

2  Cruise,  Dig.  Deed,  c.  14-16,  where  the  subjects  are  fully  treated  of.  The 
reader  is  also  referred  to  the  Appendix  for  a  form  of  a  modern  deed  of  settlement. 


NATURE   AND    CLASSIFICATION    OF   EXECUTOliY    KEVISES.      639 


CHAPTER   LXXXI. 

EXECUTORY   DEVISES  —  NATURE   AND    CLASSIFICATION   OP 
EXECUTORY    DEVISES. 

§  1733.  Definition. 

1734.  Nature  of  executor}'  devises. 

1735.  Analogy  to  springing  and  shifting  uses. 

1736.  Their  origin. 

1737.  Historical  outline. 

1738.  Classification. 

1739.  First :  one  fee  limited  after  another. 

1740.  Second  :  freehold  limited  in  futuro. 

1741.  Devisor's  interest,  how  atfected. 

1742.  Of  a  partial  displacement  of  the  first  estate. 

1743.  Future  limitations  construed  as  remainders  if  possible. 

1744.  Executory  devises  and  remainders  distinguisheil. 

1745.  Illustration. 

1746.  Executory  devises  and  remainders  distinguished,  continued. 

1747.  Limitation  over  upon  dying  without  issue. 

1748.  Of  a  remainder  changing  to  an  executory  devise. 

1749.  Of  executory  devise  changing  to  remainder. 

1750.  Of  a  certain  limitation  after  an  uncertain. 

1751.  Illustration. 

1752.  Remainder  after  prior  limitation  which  never  takes  effect. 

1753.  Effect  upon  subsequent  limitations  of  a  prior  one  carrjang  the  whole 

interest. 

1754.  Illustration. 

1755.  "  Dying  without  issue,"  —  general  failure  of  issue. 

1756.  Illustration. 

1757.  Distinctions  between  executory  devises  and  remainders. 

1758.  Indestructibility  of  executory  devises. 

1759.  Executory  devise  after  previous  estate  which  fails. 

1760.  Alienability  of  executory  devises. 

§  1733.  Definition.  —  Mr.  Fearne  defines  an  executory  de- 
vise, so  far  as  it  embraces  lands,  as  "such  a  limitation  of  a 
future  estate  or  interest  in  lands  as  the  law  admits  in  the  case 
of  a  will,  though  contrary  to  the  rules  of  limitation  in  con- 
veyances at  common  law. "  ^ 

A  Fearne,  Cont.  Rem.  386,  and  Butler's  note  ;  1  Jarm.  Wills,  798  ;  Lewis, 
Perpet.  74  ;    Purefoy  v.  Rogers,  2  Wms.  Saund.  388,  note  ;    Lovett  v.  Lovett,  10 


6-40  EXECUTORY    DEVISES. 

§  1734.  Nature  of  Executory  Devises.  —  Before  the  nature 
of  an  executory  devise  was  settled,  there  was  a  long  struggle 
in  the  courts,  which  is  referred  to  in  Jones  v.  Roe,  where  it 
was  finally  held  that  it  was  a  something  which  might  be 
assigned  or  released,  and  would  descend,  and  might  be  de- 
vised; that,  though  not  in  all  cases  properly  an  estate,  it  was 
not  embraced  in  the  category  of  naked  possibilities,  such  as 
that  of  an  heir  expectant  to  the  estate  of  his  ancestor,  but  was 
an  interest  in  land.  The  language  of  Willes,  Ch.  J.,  is 
quoted  with  approbation,  who  says :  "  Executory  devises  are 
not  naked  possibilities,  but  are  in  the  nature  of  contingent 
remainders;"  and  another  judge  refers  to  them  as  "a  possi- 
bility accompanied  with  an  interest. "  ^  But  the  power  of 
alienation,  devise,  etc.,  above  spoken  of,  must  be  understood 
to  be  limited  to  cases  where  the  party  who  is  to  take  is  an 
ascertained  person.  ^ 

§  1735.  Analogy  to  Springing  and  Shifting  Uses.  —  Much  of 
the  learning  of  executory  devises  consists  in  applying  rules 
which  discriminate  between  them  and  contingent  remainders, 
while  most  of  the  doctrine  relating  to  springing  and  shifting 
uses  is  identical  with  that  of  executory  devises,  with  this 
distinction,  that  by  an  executory  devise  the  freehold  itself  is 
transferred  to  the  future  devisee  substantively,  without  any 
reference  to  the  statute  of  uses.^ 

§  1736.  Their  Origin.  —  It  is  stated  in  the  above  case  of  Jones 
V.  Roe,^  that  executory  devises  took  their  rise  in  the  time  of 
Elizabeth.  But  to  understand  their  history  fully,  it  is  neces- 
sary again  to  refer  to  the  doctrine  of  uses,  whereby,  before  the 
statute  of  Henry  VIII.  u})on  the  subject^  the  owners  of  lands, 
though  not  able  to  devise  them  by  the  common  law,  could  do 
so  by  conveying  the  land  to  a  feoffee  to  such  uses  as  the  feoffor 
should  appoint  by  his  last  will.  The  will  operated  upon  the 
use,  and  was  enforced  then  through  the  agency  of  chancery.^ 

Phila.  538  ;    MeRee  v.  Means,   34   Ala.    349.     In   the  Alabama  Code,  remainder 
includes  executory  devises. 

1  Jones  V.  Eoe  d.  Perry,  3  T.  E.  88-98  ;  Wilson,  Uses,  157. 

2  "Wilson,  Uses,  159.     ^ne  post,  §  1760. 

8  1  Spence,  Eq.  Jur.  471  ;  Lewis,  Perpet.  72 ;  Wms.  Real  Prop.  259. 
*  Jones  V.  Roe  d.  Perry,  3  T.  R.  95. 
s  Wms.  Real  Prop.  257. 


NATURE    AND    CLASSIFICATION    OF    EXECUTORY   DEVISES.      641 

§  1737.  Historical  Outline.  —  The  statute  of  uscs,  27  Hen. 
VIII.  c.  10,  put  an  end  to  all  devises  of  lands  till  the  enact- 
ment of  the  statute  of  wills,  32  Hen.  VIII.  c.  1,  a.  d.  1542, 
authorized  the  holders  of  socage  lands  to  devise  them  by 
last  will  and  testament.  In  construing  this  statute,  courts 
adopted  the  more  liberal  rules  which  chancery  had  before 
applied  to  the  former  devises,  expounding  them  by  the  inten- 
tion of  the  testators  if  possible,  rather  on  the  particular  cir- 
cumstances of  each  will,  than  by  any  general  rules  of  positive 
law.^  And  acting  in  analogy  to  what  had  been  adopted  as  the 
rule  of  chancery  in  respect  to  devises  of  uses,  as  well  as  the 
rules  w'hich  courts  of  law  had  applied  in  case  of  customary 
devises,  the  courts  sanctioned  the  validity  of  devises  of  future 
estates  of  freehold,  as  well  as  sales  made  by  executors  when 
authorized  by  the  wills  under  which  they  acted,  or  where 
lands  were  devised  to  executors  to  be  sold,  although  at  common 
law  such  executory  devises  would  have  been  void.^  Regard- 
ing them  historically,  it  would  seem  that  they  must  have 
been  of  gradual  introduction  and  growth  as  a  settled  and 
defined  portion  of  the  English  law;  for  though  it  was  stated 
by  Lord  Kenyon,  in  Jones  v.  Iloe,^  that  they  took  their  rise  in 
the  time  of  Elizabeth,  it  was  said  by  the  same  judge,  in  Doe 
V.  Morgan,^  that,  being  found  of  general  utility,  they  were 
established  in  the  time  of  Charles  I.  And  in  the  argument  of 
Thellusson's  case  (1798),  Mr.  Hargrave  states  that  "executory 
devise  was  not  regularly  admitted  till  about  two  centuries 
ago."  But  Mr.  Lewis  refers  to  cases  in  which  the  doctrine 
was  recognized  at  a  period  anterior  to  that.  Still  the  law 
upon  the  subject,  especially  the  indestructibility  of  executory 
devises,  does  not  seem  to  have  been  settled  until  the  case  of 
Pells  V.  Brown, ^  in  1619,  though  courts  had  often  recognized 
as  valid  devises  of  estates  of  freehold  to  commence  infuturo.^ 

1  1  Spence,  Eq.  Jur.  470  ;  2  Bl.  Com.  382. 

2  Lewis,  Perpet.  78,  79  ;  Wnis.  Real  Prop.  259  ;  1  Spence,  Eq.  Jur.  470  ;  Wilson, 
Uses,  56. 

8  Jones  V.  Roe  d.  Perry,  3  T,  R.  95. 
*  Doe  (1.  Mu.ssell  v.  jMorgan,  3  T.  R.  765. 
6  Pells  V.  Brown,  Cro.  Jac.  590. 

6  Fearne,   Cont.   Rem.   429,   note ;    Lewis,   Perpet.  80-82,  131  ;  Thellusson  v. 
Woodford,  1  Bos.  &  P.  N.  R.  357. 
VOL.   II.  —  41 


642  EXECUTORY   DEVISES. 

Nor  was  the  law  in  relation  to  tliera  fully  settled  till  the  Duke 
of  Norfolk's  case  in  1695.1  ^^d  finally,  Lord  Mansfield,  in 
1785,  declared  that  he  remembered  the  introduction  of  the 
rule  which  prescribes  the  time  in  which  executory  devises 
must  take  effect  to  be  for  the  period  of  a  life  or  lives  in  being, 
and  twenty-one  years  after  wards.  ^ 

§1738.  Classification.  —  Mr.  Fearne  divides  executory  de- 
vises of  freeholds  into  two  classes,  making  devises  of  chattel 
interests  a  separate  class  or  division.  This  he  borrowed 
from  the  language  of  Powell,  J.,  in  Scatterwood  v.  Edge;  and 
in  this  he  has  been  followed  by  Mr.  Cruise,  and  by  Shaw, 
Ch.  J.,  in  Niglitingale  v.  Burrell,  and  will  be  followed  in  the 
present  treatise,  although  Mr.  Preston  divides  the  two  classes 
into  six,  and  the  third  into  two  or  three  more.^ 

§  1739.  First:  One  fee  limited  after  another.  —  The  first  of 
these  embraces  cases  where  a  fee-simple,  for  instance,  is 
devised  to  one,  but  is  to  determine  upon  some  future  event, 
and  the  estate  thereupon  to  go  over  to  another.  An  instance 
illustrative  of  this  principle  would  be  a  devise  to  a  mother  for 
life,  and  after  her  death  to  the  testator's  brother  in  fee^  pro- 
vided that  if  the  testator's  wife,  then  enceinte,  was  delivered 
of  a  son,  then  the  land  should  remain  in  fee  to  him.  A  son  hav- 
ing been  born,  took  the  estate  as  an  executory  devise^  So  a 
devise  to  A  and  his  heirs,  but  in  case  he  die  within  age,  then 
to  go  to  B  and  his  heirs,  B's  interest  is  an  executory  devise.^ 
But  where  the  devise  was  to  A  and  B  and  their  heirs,  but,  if 
either  died  without  issue,  his  share  was  to  go  to  the  survivor, 
and  one  of  them  had  issue  and  died,  it  had  the  effect  to  defeat 
the  executory  devise,  and  to  change  both  estates  into  fees- 
simple;  the  contingency  of  either  dying  without  issue  while 
there  was  a  survivor  had  thereby  become  impossible.^     So  in 

1  AVms.  Eeal  Prop.  262  and  note. 

2  Buckworth  v.  Thirkell,  3  Bos.  &  P.  652,  n. ;  Cadell  v.  Palmer,  10  Bing.  140; 
s.  C.  1  Clark  &  F.  372. 

8  Fearne,  Cont.  Eera.  399  ;  Scatterwood  v.  Edge,  1  Salk.  229;  6  Cniise,  Dig. 
366  ;  4  Kent,  Com.  268  and  note  ;  Nightingale  v.  Burrell,  15  Pick.  104  ;  2  Bl. 
Com.  172  ;  2  Prest.  Ab.st.  124. 

*  Nightingale  v.  Burrell,  15  Pick.  104,  111  ;  Marks  r.  Marks,  10  Mod.  423; 
Doe  d.  Fonnereau  v.  Fonnereau,  Doug.  487  ;  Brattle  Sq.  Ch.  v.  Grant,  3  Gray,  146, 
151  ;  Purefoy  v.  Rogers,  2  Wms.  Saund.  388  «,  note. 

5  Brightman  v.  Brightman,  100  Mass.  238. 


NATURE    AND    CLASSIFICATION    OF   EXECUTORY   DEVISES.       643 

a  devise  to  A,  but  if  she  died  without  a  child,  then  to  B,  it 
was  held  that  A  took  a  life-estate,  which  might  become  a 
fee  upon  her  leaving  a  child,  and  that  a  fee  over  was  limited 
to  B,  if  she  left  no  child. ^  In  neither  of  these  cases  could  the 
second  estate  have  taken  effect  as  a  remainder,  for  a  reason 
which  furnishes  a  discriminating  test  whether  a  limitation  is 
an  executory  devise  or  not;  namely,  that  the  prior  estate  in 
each  was  a  fee-simple,  after  which,  as  before  explained,  no 
remainder  can  be  limited.  And  then,  again,  if  the  second 
took  effect  at  all,  instead  of  waiting  till  the  prior  estate  had 
naturally  expired,  it  came  in  and  superseded  it,  cutting  it 
short  before  its  regular  determination,  which  a  remainder 
never  does.^  So  where  the  devise  was  to  six  children  in  fee, 
with  limitations  over  to  the  survivors  which  would  have 
given  them  cross-remainders  if  the  first  devise  had  been  to 
them  for  life  only,  as  it  was  in  fee,  these  limitations  could 
only  take  effect  as  executory  devises,  and  as  such  were  held  to 
be  good.  3  The  estate  limited  after  the  first  limitation  in  fee- 
simple  may  be  a  fee  or  a  less  estate.*  In  one  case,  the  devise 
was  to  a  daughter  in  fee ;  but  if  she  died  without  lawful  issue, 
then  to  the  testator's  other  surviving  children,  or  their  repre- 
sentatives. All  the  testator's  children  died  in  the  lifetime  of 
the  wife,  so  that  she  died  without  issue,  and  one  only  of  these 
children  left  issue.  It  was  held,  that  the  issue  of  this  child 
took  the  estate  as  executory  devisees.'^ 

§  1740.  Second:  Freehold  Limited  in  Futuro. — The  second 
class  of  executory  devises  includes  those  cases  where  the  tes- 
tator limits  a  future  estate  of  freehold  to  come  into  existence 
at  a  period  certain,  or  upon  a  contingency,  but  does  not  part 
with  the  fee.  As,  for  instance,  where  a  devise  is  made  to  A 
and  his  heirs,  to  take  effect  at  the  end  of  six  months  from  the 
death  of   the  testator.^      So    where  the  testator   devised   an 

1  Hatfield  v.  Sneden,  42  Barh.  6]  5,  s.  c.  54  N.  Y.  285,  286  ;  Johnson  v.  Sim- 
cock,  7  Hurlst.  &  N.  344. 

2  Nightingale  v.  Burrell,  15  Pick.  104,  110. 

8  Jackson  d.  Burhans  v.  Blanshan,  3  Johns.  299 ;  Hilleary  i;.  Hilleary,  26  Md. 
274. 

*  2  Bl.  Com.  173  ;  Watk.  Con  v.  (ed.  1838)  193. 
6  Jackson  d.  Kip  v.  Kip,  2  Paine,  C.  C.  366. 
6  6  Cruise,  Dig.  377  ;  Fearne,  Cont.  Rem.  400. 


644  EXECUTORY   DEVISES. 

estate  to  such  of  his  nephews  as  should  first  come  to  this 
country  within  six  years  after  the  testator's  death,  it  was 
held  that  in  the  meantime  the  estate  descended  to  the  testa- 
tor's heirs  at  law.^*  Such  limitations  would  be  clearly  void 
at  common  law,  as  being  independent  freeholds  to  commence 
in  futuro.  Of  the  same  nature  is  a  devise  to  the  heirs  of  A  B 
who  is  then  living,  or  to  a  feme  sole  and  her  heirs  upon  her 
marriage.^  Nor  could  they  be  sustained  at  common  law  as 
remainders,  for  the  obvious  reason  that  they  were  contingent 
limitations  without  any  particular  estate  to  sustain  them.^ 
§  1741.  Devisor's  Interest,  how  affected.  —  A  distinction, 
already  referred  to,  exists  between  the  two  classes  of  execu- 
tory devises  above  mentioned,  and  it  is  this:  In  the  first,  the 
whole  estate  goes,  in  the  first  place,  out  of  the  devisor;  in 
the  other,  nothing  goes  out  of  him  until  the  event  happens 
which  is  to  give  effect  to  the  devise.  In  the  mean  time,  the 
estate  goes  to  the  heirs  of  the  testator,  unless  it  should  pass 
as  a  particular  or  residuary  devise.*  It  may  be  stated,  that, 
as  devises  take  effect  at  and  from  the  death  of  the  testator,  if 
a  devise  be  in  terms  a  present  one,  and  nobody  is  in  esse 
capable  to  take  under  it  at  the  testator's  death,  it  will  be 
void  ;  it  cannot  be  construed  an  executory  devise  so  as  to  take 
effect  when  some  one  answering  to  the  description  comes  in 
esse.  Thus,  if  a  devise  is  to  the  heirs  of  J.  S.,  and  J.  S.  is 
living  at  the  testator's  death,  there  is  no  one  m  esse  answering 
to  the  devisee,  and  the  devise  fails.  But  if  it  had  been  in 
terms  deferred  to  the  death  of  J.  S.  as  to  the  heir  of  J.  S. 
after  his  death,  it  would  have  been  a  good  executory  devise 
to  take  effect  at  the  happening  of  a  future  event.  ^     Thus  a 

*  Note.  —  The  reader  will  remark  that  much  of  what  is  said  of  this  class  of 
executory  devises  must  be  inapplicable  in  those  States  where,  by  statute,  freeholds 
may  be  created  to  commence  in  futuro,  and  the  common  law  in  this  respect  is 
changed. 

1  Chambers  v.  Wilson,  2  Watts,  495. 

2  2  Bl.  Com.  173 ;  Leslie  v.  Marshall,  31  Barb.  566. 
8  2  Bl.  Com.  173. 

*  4  Kent,  Com.  268  ;  Watk.  Conv.  (cd.  1838)  199  ;  2  Brest.  Abst.  120  ;  6  Cruise, 
Dig.  423.  It  is  proposed  to  treat  of  the  third  class  of  these  devises  by  themselves, 
later  in  the  work. 

6  6  Cruise,  Dig.  422  ;  Goodright  v.  Cornish,  1  Salk.  226. 


NATURE   AND    CLASSIFICATION   OF   EXECUTORY   DEVISES.      645 

devise  to  a  society  which  is  now  in  existence,  but  not  capable 
of  taking,  would  be  void;  nor  would  it  become  valid  by  their 
subsequently  acquiring  a  capacity  to  hold  property.  But  a 
devise  to  such  a  society,  when  it  shall  become  capable  of 
taking,  would  be  good  as  an  executory  devise  when  the  society 
shall  have  acquired  such  capacity.  And  it  is  stated  as  a 
broad  and  general  principle,  that  every  executory  devise  is 
upon  some  condition  or  contingency,  and  takes  effect  upon  the 
happening  of  such  contingency  or  performance  of  such  condi- 
tion. ^  So  a  devise  to  the  unborn  children  of  a  person,  though 
in  prcBsenti,  is  good,  for  the  intention  of  the  devise  is  clearly 
future  in  its  construction. ^ 

§  1742.  Of  a  Partial  Displacement  of  the  First  Estate.  —  Mr. 
Preston  speaks  of  a  species  of  executory  devises  "where  there 
is  a  devise  of  an  estate  of  inheritance,  or  any  other  estate, 
and  on  some  event  a  particular  estate  to  a  stranger  is  intro- 
duced to  take  place  in  derogation  of  the  estate  of  inheritance, 
and  to  a  partial  though  not  total  exclusion  of  the  same.  "^ 
Mr.  Powell,  in  his  work  on  Devises,  favors  this  idea  of  a  par- 
tial displacement  of  the  first  estate.^  But  Mr.  Fearne  contends 
against  it,  on  the  ground,  that,  if  the  second  estate  takes 
effect  at  all,  the  first  is  displaced  altogether.^  The  following 
case,  involving  this  question,  is  understood  to  have  arisen  in 
the  Supreme  Court  of  Delaware,  and  the  court  were  divided  in 
opinion  upon  it ;  namely :  A  devise  was  made  to  a  son  and 
his  heirs;  but  if  he  died  without  leaving  children,  then  to  A  B 
for  life.  The  son  died  without  children.  A  B  entered  and 
enjoyed  the  estate  during  his  life ;  and  then  the  question 
arose,  whether  the  heirs  of  the  devisor  or  of  the  son  became 
entitled  to  the  estate.  Upon  the  theory  of  Mr.  Fearne,  the 
estate  of  the  son  was  wholly  defeated.  Upon  that  of  Mr. 
Preston,  the  life-estate  of  A  B  was  carved  out  of  the  fee  in 
the  son,  and  all  that  was  left  of  the  estate  still  remained  in 
his  heirs.     The  remarks  of  Mr.  Powell  upon  the  subject  are : 

1  Iiiglis  V.  Sailors'  Snug  Harbor,  3  Pet.  99,  114,  115  ;  Porter's  case,  1  Rep.  24  ; 
Leslie  V.  Marshall,  31  Barb.  565. 

2  6  Cruise,  Dig.  423  ;  Doe  v.  Carleton,  1  Wils.  225. 

3  2  Prest.  Abst.  140. 
*  2  Pow.  Dev.  241. 

6  Fearne,  Cent.  Eem.  251,  530. 


646  EXECUTORY   DEVISES, 

"To  this  important  rule,  namely,  that  an  estate  subject  to  an 
executory  devise  to  arise  on  a  given  event,  is,  on  the  happen- 
ing of  that  event,  defeated  only  to  the  extent  of  the  executory 
interest,  the  only  possible  objection  that  can  be  advanced  is 
the  total  absence  of  direct  authority  for  it,  for  the  books  do 
not  furnish  a  single  example  of  its  application.  "^  It  may  be 
travelling  out  of  the  record  to  attempt  to  settle  a  question 
upon  which  such  writers  differ,  or  are  in  doubt.  Yet  if  de- 
vises are  to  be  construed  according  to  the  intention  of  the 
devisors  expressed  in  their  wills,  and  a  case  occurs  where,  in 
terms,  the  devisor  gives  away  his  entire  inheritance  to  an 
object  of  his  bounty,  thereby  substituting  him  in  his  own 
place,  except  that,  if  a  certain  event  happens,  a  third  person 
is  to  share  in  the  inheritance  for  a  limited  period,  and  noth- 
ing is  said  as  to  what  shall  then  become  of  the  balance  of  the 
inheritance,  it  would  strike  a  common  mind  that  this  residue 
must  belong  and  go  to  the  first-named  devisee,  and  that  the 
particular  estate  given  to  the  second  devisee  named  should  be 
considered  as  carved  out  of  the  estate  of  the  first,  rather  than 
that  the  first  should  be  regarded  as  defeated,  and  the  second 
take  effect  out  of  the  reversionary  interest  of  the  devisor  to 
whom  the  estate  would  finally  revert. 

§  1743.  Future  Limitations  construed  as  Remainders  if  possi- 
ble.—  There  are  various  reasons  for  the  anxiety  always  man- 
ifested by  the  courts  to  construe  future  limitations  as 
remainders,  if  possible,  instead  of  executory  devises.  In  the 
first  place,  remainders  were  a  well-defined  class  of  interests, 
and  the  rules  in  regard  to  them  well  understood  before  execu- 
tory devises  were  fully  recognized ;  and  the  latter  are,  more- 
over, contrary  to  the  rules  and  spirit  of  the  common  law  in 
respect  to  the  conveyance  of  estates.  In  the  second  place, 
executory  devises  are,  in  their  nature,  indestructible,  and 
the  lands  thereby  limited  may  be  in  that  way  locked  up  from 
alienation.'-^      The   rule,    therefore,  which    is    laid    down   in 

1  2  Pow.  Dev.  241. 

2  Purefoy  v.  Rogers,  2  Wms.  Saund.  388  ;  Watk.  Conv.  192,  Coventry's  note  ; 
Nightingale  v.  Burrell,  15  Pick.  104,  110  ;  Doe  d.  Mussell  v.  Morgan,  3  f  .  R.  763  ; 
Hall  V.  Priest,  6  Gray,  18,  20  ;  Parker  v.  Parker,  5  Met.  134,  138  ;  Watk.  Conv. 
202  ;  Doe  d.  Fonnereau  v.  Founereau,  Doug.  487  ;  Doe  d.  Poor  v.  Considine, 
6  Wall.  475. 


NATURE    AND    CLASSIFICATION    OP    EXECUTORY    DEVISES.       647 

Purefoy  v.  Rogers,  is  recognized  by  all  the  authorities  as  a 
governing  principle;  namely,  that  "where  a  contingency  is 
limited  to  depend  npon  an  estate  of  freehold  which  is  capable 
of  supporting  a  remainder,  it  shall  never  be  construed  to  be 
ah  executory  devise,  but  a  contingent  remainder  only,  and 
not  otherwise.  "1  These  remarks  must,  of  course,  be  limited 
to  the  first  class  of  executory  devises,  for  the  very  definition 
of  the  second  class  precludes  the  idea  of  a  prior  estate  upon 
which  the  executory  devise  depends.  In  respect  to  the  former, 
there  are  certain  rules  by  which  to  distinguish  them  from 
remainders,  which  it  may  be  well  to  state. 

§  1744.  Executory  Devises  and  Remainders  distinguished.  —  lu 
the  first  place,  if  the  prior  estate  is  a  fee-simple,  the  second 
must  be  an  executory  devise,  for  the  reason  that  a  remainder 
cannot  be  limited  upon  a  fee-simple.^  When,  therefore,  the 
limitation  is  after  a  fee-simple,  it  will  not  make  it  any  the 
less  an  executory  devise,  that  the  prior  estate  in  fee  is  contin- 
gent and  not  vested,  if  the  ulterior  devise  is  so  limited  as  to 
take  effect  in  defeasance  of  the  prior  estate  after  that  has 
vested. 

§  1745.  Illustration.  —  This  general  proposition  is  illustrated 
in  the  case  of  Gulliver  v.  Wickett,^  where  the  devise  was  to 
the  wife  for  life,  and  after  her  death  to  the  child  with  which 
she  was  supposed  to  be  enceinte,  and  to  the  heirs  of  such  child 
forever;  but  if  such  child  should  die  under  twenty-one  years 
of*  age,  leaving  no  issue  of  its  bodj-,  the  reversion  to  go  over. 
It  was  held,  that,  although  the  estate  to  the  child  was  a 
contingent  fee,  this  limitation  over  was  an  executory  devise, 
since  it  was  so  limited,  that,  if  the  child  were  born,  he  would 

1  Nightingale  u.  Burrell,  15  Pick.  104,  111  ;  Doe  d.  Mussell  v.  I\rorgan,  3  T.  R. 
763  ;  Wilson,  Uses,  5  ;  Terry  v.  Briggs,  12  Met.  17,  22  ;  IMaiulerson  v.  Lukens, 
23  Penn.  St.  31. 

2  Nightingale  v.  Burrell,  15  Pick.  104,  111 ;  Wead  v.  Gray,  8  Mo.  App.  515  ; 
Stones  V.  Maney,  3  Tenn.  Ch.  731.  So  where  A  devised  estate  to  B,  a  child, 
without  saying  what  estate,  but  added  that  if  the  child  died  without  issue,  his 
share  should  be  divided  among  the  surviving  heirs,  it  was  held  that  the  estate-tail 
which  he  would  take  on  account  of  the  words  dying  "  without  issue  "  was  changed, 
by  the  words  "  surviving  heirs  "  to  a  life-estate,  as  those  words  limited  the  failure 
of  issue  to  the  life  of  B,  and  that  the  devise  over  to  the  surviving  heirs,  B  having 
died  without  children,  was  a  good  executory  devise.     Groves  v.  Cox,  40  N.  J.  L.  40. 

3  Gulliver  v.  Wickett,  1  Wils.  105. 


648  EXECUTORY    DEVISES. 

at  once  have  a  vested  remainder  in  fee ;  but  if  he  died  without 
heirs  of  his  body,  under  twenty-one  years  of  age,  the  devise 
over  at  once  came  in  and  took  effect  in  defeasance  of  such 
estate  in  fee.  Nor  would  it  make  any  difference  that  no  child 
was  born.  The  devise  over  would  still  take  effect,  and  as  an 
executory  devise,  and  not  as  a  remainder,  from  the  circum- 
stance, that  by  its  original  limitation  it  was  not  to  take  effect 
as  an  alternative  limitation  in  case  simply  of  no  child  being 
born,  but  it  contemplated  the  child's  being  born,  the  fee  vest- 
ing in  him,  and  his  subsequently  dying  without  issue,  when, 
and  when  only,  according  to  its  terms,  the  limitation  over 
was  to  take  effect:  merely  because  she  had  no  child,  could 
not,  therefore,  change  the  character  of  the  devise  to  the 
second  devisee,  for  wills  must  be  construed  upon  the  circum- 
stances as  they  stood  at  the  testator's  death,  and  not  be  varied 
by  subsequent  events.^  * 

§  1746.  Executory  Devises  and  Remainders  distinguished,  con- 
tinued. —  While  the  proposition  is  a  general  one,  that  an  estate 
may  be  devised  over  in  either  one  of  two  events,  and  that  in 
one  event  the  devise  over  may  operate  as  a  contingent  re- 
mainder, and  in  the  other  as  an  executory  devise,  it  is  not  easy 
always  to  discriminate  where  this  doctrine  is  to  apply.     One 

*  TToTE.  — Mr.  Wilson,  in  his  treatise  on  Uses,  p.  19,  contends,  that  under  the 
decision  in  Doe  d.  Davy  v.  Burnsall,  6  T.  R.  30,  and  Crump  v.  Norwood,  7  Taunt. 
362,  the  limitation  in  Gulliver  v.  Wickett,  called  Roe  v.  Wickett,  in  Willes,  Rep. 
303,  would  now  be  held  to  be  a  contingent  remainder,  rather  than  an  executory 
devise.  In  Doe  d.  Herbert  v.  Selby,  2  Barn.  &  C.  930,  Bayley,  J.,  assumes  that 
"Gulliver  w.  Wickett  was  clearly  a  case  of  executory  devise;"  while  in  Evers  v. 
Challis,  7  H.  L.  Cas.  550,  Lord  Cranworth  expressed  an  opinion  that  it  was  a  case 
of  contingent  remainder,  and  not  of  executory  devise.  But  by  a  reference  to  those 
cases  it  will  be  found  that  the  contingency  upon  which  the  future  estate  depended 
was  the  dying  of  the  one  who  had  the  preceding  life-estate  without  issue,  or  the  dy- 
ing of  such  issue  under  the  age  of  twenty-one,  making  the  devise  over  depend  ujjon  a 
double  contingency,  or  one  with  a  double  aspect.  Whereas,  in  Gulliver  v.  Wickett, 
there  was  but  a  single  contingency  provided  for  in  the  will,  nameh',  the  dying  of 
the  child  within  twenty-one  years  ;  the  fact  that  the  wife  was  enceinte  being 
assumed  as  a  fact,  and  the  future  estate  not  being  made  to  depend  on  that  event. 
See  Meadows  v.  Parry,  1  Ves.  &  B.  124  ;  Fonnereau  v.  Fonnereau,  3  Atk.  315  ; 
Statham  v.  Bell,  Cowp.  40  ;  Jones  v.  Westcomb,  1  Eq.  Cas.  Abr.  245  ;  Tud.  Lead. 
Cas.  705-711. 

1  Fearne,  Cont.  Rem.  396,  397  ;  Roe  d.  Fulham  v.  Wickett,  Willes,  303 ;  Doe 
d.  Fonnereau  v.  Fonnereau,  Doug.  487. 


NATURE   AND   CLASSIFICATION   OF   EXECUTORY   DEVISES.      649 

test  given  in  Doe  v.  Selby  is,  that  if  the  first  limitation  be  of 
a  vested  fee,  though  determinable,  the  subsequent  limitation 
or  remainder  is  an  executoj-y  devise,  because  it  is  limited  after 
a  fee.  But  if  the  first  be  a  limitation  of  a  fee  upon  a  contin- 
gency, and,  upon  the  failure  of  the  estate  so  limited,  there  be 
a  devise  over,  and  the  contingency  do  not  happen,  the  remain- 
der would  be  a  contingent  remainder,  and  not  an  executory  de- 
vise. Thus  a  devise  to  G.  for  life,  remainder  to  his  children 
and  their  heirs,  or  if  G.  died  without  children,  or,  leaving 
issue,  such  issue  died  before  twenty-one  years  of  age,  then  a 
devise  over  to  T.  A.  and  D.  and  their  heirs,  it  was  held  to  be 
the  limitation  of  a  contingent  remainder  to  those  devisees, 
because  G.  never  was  married.  Had  he  married  and  had  a 
child,  the  limitation  over  would  have  been  an  executory 
devise.  1 

§  1747.  Limitation  over  upon  dying  without  Issue.  —  It  is 
hardly  necessary  to  say,  that  an  estate  of  freehold  limited 
after  an  estate-tail  would  be  a  remainder.^  But  it  often  is  a 
matter  of  nice  construction,  whether  a  limitation  after  an 
estate  to  one  which  is  to  fail  if  he  die  without  heirs  of  his 
body  living  at  his  death  is  an  executory  devise  or  a  remainder. 
If,  for  instance,  the  devise  is  to  A  and  his  heirs,  and  if  he 
dies  without  issue  living,  then  over,  it  is  by  implication  an 
estate-tail,  the  word  "issue"  making  "heii-s"  to  mean  heirs 
of  his  body,  and  showing  the  testator's  intention  that  the 
estate  shall  go  in  a  succession  to  such  heirs. ^  A  case  of  this 
kind  was  a  devise  to  two  children,  and,  if  either  died  before 
arriving  at  twenty-one  years,  the  survivor  was  to  have  the 
whole;  and  if  both  died  without  leaving  any  heirs  of  their 
bodies  begotten,  tbcn  there  was  a  devise  over.  It  was  held 
that  they  took  estates-tail  with  cross-remainders,  with  a  re- 
mainder over  upon  both  dying  without  issue*  But  if  tliere  is 
not  implied  an  intent  that  the  issue  shall  take  as  children 
and  heirs  of  the  parent,  but  merely  that  the  dying  witliout 
issue  is  to  be  an  event  upon  which  the  testator  intended  that 

1  Doe  d.  Herbert  v.  Selby,  2  Barn.  &  C.  926,  930. 

2  Hall  V.  Priest,  6  Gray,  17,  20. 

8  Hall  V.  Priest,  6  Gray,  17,  21  ;  Parker  v.  Parker,  5  Met.  134,  139. 
*  AUeu  V.  Ashley  Sell.  Fund  Tr.,  102  Mass.  26;  Matlack  v.  Roberts,  54  Penn. 
St.  148. 


650  EXECUTORY   DEVISES. 

the  estate  should  cease  to  be  one  of  inheritance  in  the  family 
of  the  first  taker,  and  should  go  over  to  a  third  person,  the 
limitation  becomes,  as  to  such  third  person,  an  executory  de- 
vise, and  not  a  remainder.  "The  event  of  a  person's  dying 
without  leaving  issue  surviving  or  not  is  a  contingency  upon 
which  an  executory  devise  may  be  limited  over,  as  well  as  the 
happening  of  any  other  event.  "^ 

§  1748.  Of  a  Remainder  changiug  to  an  Executory  Devise.  — • 
A  limitation  by  way  of  contingent  remainder  may,  by  a  change 
of  circumstances  before  the  will  in  which  it  is  contained 
takes  effect  by  the  testator's  death,  be  changed  into  an  exec- 
utory devise  rather  than  that  the  intention  of  the  devisor  in 
respect  to  the  devise  should  be  defeated.  But  a  limitation 
once  operating  as  a  contingent  remainder  can  never,  after  the 
death  of  the  testator,  be  changed  into  an  executory  devise. 
Thus  where  a  limitation  is  made  to  A  for  life,  remainder 
in  tail  to  the  sons  of  B,  who  has  no  sons,  and  A  dies  in  the 
life  of  the  testator,  if  the  sons  of  B  shall  not  then  have  been 
born,  the  limitation  to  them  becomes  an  executory  devise, 
just  as  if  no  previous  limitation  to  A  had  been  made.  But 
had  A  survived  the  testator,  whereby  his  estate  for  life  would 
have  vested,  and  then  had  died  before  a  son  was  born  to  B,  as 
the  limitation  to  such  son  could  take  effect  as  a  contingent 
remainder,  it  could  not  be  sustained  as  an  executory  devise. ^ 
The  case  of  Hopkins  v.  Hopkins  ^  was  briefly  this :  A  devise 
was  made  to  S.  H.  for  life,  and  after  his  death  to  his  sons; 
and,  if  he  died  without  issue,  over  to  the  sons  of  J.  H.,  who 
were  then  unborn.  This  was,  of  course,  in  terms,  a  contin- 
gent remainder  in  the  sons  of  J.  H.,  expectant  upon  their 
being  born,  and  the  dying  of  S.  H.  without  issue.  S.  H. 
died  in  the  life  of  the  testator  without  issue,  and  the  testator 
died  before  the  birth  of  any  son  of  J.  H.,  who  afterwards  had 
a  son.     It  was  held,  that  this  son  took  an  executory  devise 

1  Nightingale  v.  Burrell,  15  Pick.  104,  112,  113;  Purefoy  v.  Eogers,  2  Wins. 
Saund.  388  b. 

2  Fearne,  Cout.  Rem.  525,  626,  and  Butler's  note  ;  2  Prest.  Abst.  172  ;  Pure- 
foy V.  Rogers,  2  "Wins.  Saund.  388  g  ;  Hopkins  v.  Hopkins,  Cas.  temp.  Talb.  44 ; 
6  Cruise,  Dig.  422 ;  Doe  d.  Harris  v.  Howell,  10  Barn.  &  C.  191. 

'  Hopkins  v.  Hopkins,  Cas.  temp.  Talb.  44. 


NATURE   AND    CLASSIFICATION    OF   EXECUTORY   DEVISES.      651 

in  the  same  manner  as  if  the  limitation  to  S.  H.  and  his  sons 
had  not  been  contained  in  the  will. 

§  1749.  Of  Executory  Devise  changing  to  Remainder.  —  A  limi- 
tation taking  effect  as  an  executory  devise  may,  by  a  change  of 
circumstances,  become  a  contingent  remainder,  though  it  can 
never  afterwards,  if  it  fail  as  a  remainder,  enure  as  a  condi- 
tional limitation  or  springing  use.  The  illustration  given  by 
Mr.  Preston  is  a  limitation  to  A,  from  and  after  Michaelmas, 
for  life,  remainder  to  his  first  and  other  sons  in  tail.  Till 
Michaelmas,  the  gift  operates  as  an  executory  devise.  After 
Michaelmas,  if  the  estate  of  A  vests,  the  interest  of  his  son 
will  be  a  remainder. ^  The  rule,  as  stated  by  Mr.  Williams, 
is,  "  Wherever  one  limitation  of  a  devise  is  taken  to  be  exec- 
utory, all  subsequent  limitations  must  likewise  be  so  taken. ' 
However,  it  seems  to  be  established,  that,  whenever  the  first 
limitation  vests  in  possession,  those  that  follow  vest  in  in- 
terest at  the  same  time,  and  cease  to  be  executory,  and  become 
mere  vested  remainders,  and  subject  to  all  the  incidents  of 
remainders. "  ^  The  doctrine  upon  the  subject  is  stated  thus 
by  Mr.  Butler,  in  his  edition  of  Fearne  on  Contingent  Re- 
mainders:^ "An  executory  devise  may  confer  either  an  estate 
in  fee-simple  or  a  less  estate.  On  every  estate  conferred  by 
an  executory  devise,  another  executory  devise  may  be  limited ; 
and  if  the  estate  conferred  by  an  executory  devise  be  an  estate 
in  tail,  for  life  or  for  years,  it  may  be  followed  by  a  remain- 
der; but  while  the  executory  estate  after  which  the  remainder 
is  to  arise  is  in  suspense,  it  is  not  properly  a  remainder,  but 
a  right  which  is  to  be  converted  into  a  remainder  on  a  par- 
ticular event.  Thus,  if  land  is  devised  to  A  and  his  heirs, 
and,  if  A  should  not  have  issue  living  at  his  decease,  to  B 
for  life,  and  after  B's  decease  to  C  in  fee,  the  limitation  to  C 
would  immediately  vest  in  C  a  fixed  right  to  a  remainder  in 
fee,  if  A  should  die  without  issue  in  B's  lifetime,  and  to  an 
estate  in  fee-simple  in  possession  if  A  should  survive  B  and 

1  2  Prest.  Abst.  173;  Wilson,  Uses,  149. 

2  Purefoy  v.  Rogers,  2  Wins.  Saiind.  388  h,  note.  Mr.  Williams  cites  Hopkins 
V.  Hopkins,  Cas.  temp.  Talb.  44,  and  Stephens  v.  Stephens,  id.  228.  And  the 
same  rule  applies  to  springing  and  shifting  uses.     Wilson,  Uses,  143. 

8  Fearne,  Cont.  Hem.  503,  Butler's  note. 


652  EXECUTORY   DEVISES. 

afterwards  die  without  leaving  issue.     But,  during  A's  life 
C  would  only  have  an  executory  fee." 

§  1750.  Of  a  Certain  Limitation  after  an  Uncertain.  —  So  a 
preceding  limitation,  v/hether  by  will  or  by  deed,  to  uses,  may 
be  uncertain  and  contingent,  while  a  subsequent  one,  though 
to  take  effect  in  futuro,  may  not  be  uncertain  or  conditional, 
otherwise  than  that  it  may  possibly  expire  before  the  former 
vests  or  fails,  but  may  be  so  limited  as  to  take  effect  either  in 
default  of  the  preceding  limitation  taking  effect  at  all,  or,  if 
that  should  take  effect,  by  way  of  remainder  after  it.  In 
either  of  those  cases,  this  subsequent  estate  must  vest  at  the 
time  appointed  for  the  preceding  limitation  to  vest;  for  should 
the  preceding  limitation  fail  of  taking  effect,  the  subsequent 
one  will  then  vest  in  possession;  and  should  the  preceding 
one  take  effect,  the  subsequent  one  will,  at  the  same  instant, 
vest  in  interest  as  a  remainder  upon  the  preceding  one.^ 

§  1751.  Illustrations.  —  A  devise  was  made  to  two  trustees 
and  their  heirs  till  B  should  attain  twenty-one  years  or  have 
issue;  and  if  B  should  attain  to  twenty-one,  or  have  issue, 
then  to  B  and  the  heirs  of  his  body.  But  if  he  died  before 
twenty-one,  and  without  issue,  then  remainder  over  to  C. 
Now,  here,  as  the  limitation  to  the  trustees  was  a  fee,  that  to 
B  was  an  executory  devise,  as  was  also  the  limitation  over  to 
C,  on  B's  dying  under  age  and  without  issue.  But  supposing 
the  limitation  were  to  C  for  life,  and  he  were  to  die  before  B 
was  twenty-one  or  had  issue,  his  estate  would  expire  alto- 
gether. To  that  extent  it  would  be  conditional.  But  as  the 
limitation  to  B,  if  it  ever  takes  effect,  is  of  an  estate-tail 
only,  the  limitation  over  may  be  a  vested  one  in  interest,  as 
it  is  to  take  effect  either  upon  the  death  and  failure  of  issue 
within  the  twenty-one  years  of  B's  life,  or  after  B's  estate- 
tail,  if  that  should  vest  in  him;  and  it  must,  moreover,  in  the 
latter  event,  take  effect  as  a  remainder  after  the  determination 
of  B's  estate.  The  consequence  would  be,  that  either  it  would 
vest  as  a  remainder  upon  B's  executory  devise  taking  effect 
as  an  estate  in  possession ;  or,  if  B  died  under  twenty-one  and 
without  issue,  it  would  take  effect  as  an  estate  in  possession, 
the   executory  devise  in  the  one  case  being  changed    into  a 

1  Feame,  Cont.  Rem,  506. 


NATURE    AND    CLASSIFICATION    OP   EXECUTORY   DEVISES.      053 

remainder,  in  the  otlier  into  an  estate  in  possession.^  An- 
other case  of  this  kind  was  where  a  devise  was  made  to  J.  S. 
for  five  years  from  and  after  the  next  Michaehnas  remainder 
to  C  and  his  heirs.  Here  C's  interest  could  not  be  a  remain- 
der for  want  of  a  particular  estate  to  sustain  it,  as  J.  S.  had 
no  estate  until  Michaelmas  after  the  testator's  death.  It 
was  consequently  an  executory  devise.  If  J.  S.  died  before 
Michaelmas,  C  would  take  the  fee  as  an  executory  devise.  If 
J.  S.  survived  that  point  of  time,  C's  interest  was  at  once 
changed  thereby  into  a  vested  remainder. ^ 

§  1752.  Remainder  after  Prior  Limitation  which  never  takes 
EEfeot.  —  Where  a  devise  or  limitation  by  deed  to  uses  is  made 
after  a  preceding  executory  or  contingent  limitation,  or  is 
limited  to  take  effect  on  a  condition  annexed  to  any  preceding 
estate,  if  that  preceding  limitation  or  contingent  estate  should 
never  arise  or  take  effect,  the  remainder  over  will  neverthe- 
less take  place,  the  preceding  estate  being  regarded  as  a  prior 
limitation  merely,  and  not  as  a  preceding  condition  requisite 
and  necessary  to  give  effect  to  the  subsequent  limitation. ^ 
Thus,  in  the  case  of  Brownsword  v.  Edwards,  cited  above,  the 
limitation  to  C  was,  after  the  executory  or  contingent  limita- 
tion to  B,  to  take  effect,  in  terms,  on  condition  that  B  died 
before  twenty-one  without  issue ;  yet  if  B  had  died  before 
twenty-one  without  issue,  and  thereby  no  estate  had  ever 
taken  effect  in  him,  the  limitation  to  C  would,  nevertheless, 
take  effect  as  soon  as  the  previous  limitation  to  B  had  ceased 
by  his  death. 

§  1753.  Effect  upon  Subsequent  Limitations  of  a  Prior  One 
carrying  the  Whole  Interest.  —  Whatever  may  be  the  number  of 
limitations  after  the  first  executory  devise,  or  limitation  by 
deed,  by  way  of  springing  or  shifting  uses,  of  the  whole 
interest,  any  one  of  them  which  is  so  limited  that  it  must  take 
effect,  if  at  all,  within  twenty-one  years  after  the  period  of  a 
life  then  in  being,  may  be  good,  in  the  event  that  no  one  of 
the  preceding  executory  limitations  which  would  carry  the 
whole  interest  happens  to  vest.     But  when  once  any  preceding 

1  Brownsword  v.  Edwards,  2  Ves.  Sen.  247  ;  Wilson,  Uses,  143,  144  ;  6  Cruise, 
Dig.  412. 

2  Pay's  case,  Cro.  FAiz.  878. 

8  Fearne,  Cont.  Kern.  508 ;  Wilson,  Uses,  144  ;  6  Cruise,  Dig.  413. 


654  EXECUTORY    DEVISES. 

executory  limitation,  which  carries  the  whole  interest,  hap- 
pens to  take  effect,  that  instant  all  the  subsequent  limitations 
become  void,  and  the  whole  interest  then  becomes  vested.^ 

§  1754.  Illustration.  —  The  case  of  Lion  v.  Burtiss  will  serve 
to  illustrate  and  show  the  aj)])lication  of.  some  of  the  foregoing 
rules.  The  devise  in  that  case  was  to  two  brothers,  Joseph 
and  Medcef,  of  two  separate  parcels,  with  a  proviso,  that,  if 
either  died  without  lawful  issue,  his  share  should  go  to  the 
survivor;  and  in  case  of  the  death  of  both,  without  lawful 
issue,  that  all  the  estates  should  go  to  John,  etc.  Joseph 
died  without  issue;  and  it  was  held,  that  as  Joseph's  share 
was  to  go,  upon  his  dying  without  issue,  to  the  survivor,  the 
term  must  have  intended  a  definite  failure  of  issue  at  his 
death,  and  not  an  indefinite  or  general  failure  at  some  future 
period;  and,  consequently,  the  devises  to  Joseph  and  MedceE 
were  each  of  a  fee,  and  the  devise  over  in  the  alternative  was 
an  executory  devise ;  consequently  Medcef  took  Joseph's  share 
as  an  executory  devise,  and  the  devise  over  to  John  was, 
when  made,  of  the  same  character.  But  inasmuch  as  the 
term  "survivor"  applied  only  to  the  two  first  takers,  the 
failure  of  issue,  as  applied  to  the  issue  of  the  survivor,  took 
the  ordinary  meaning  of  that  expression,  and  implied  that 
the  survivor  took  an  estate-tail  determinable  upon  a  failure 
of  his  issue,  so  that  the  limitation  to  John  became  at  once, 
on  Joseph's  death,  a  remainder  expectant  upon  an  estate-tail 
in  Medcef. 2 

§  1755.     "Dying  -writhout  Issue"  —  General  Failure  of  Issue. — ' 
It  may  be  remarked  that  by  the  rule  of  the  common  law,  though 
generally  regulated  now  by  statute,  where  a  devise  is  to  one 
and  his  heirs,  with  a  devise  over  upon  his  "dying  without 
heirs,"    or   "heirs   of  his  body,"  or  "dying  without   having 

1  Fearne,  Cont.  Rem.  517,  Butler's  note,  513;  Wilson,  Uses,  147. 

2  Lion  V.  Burtiss,  20  Johns.  483  ;  and  see  Anderson  v.  Jackson,  16  Johns.  382, 
on  which  it  was  founded,  commented  upon  at  length  by  Chancellor  Kent,  4  Kent, 
Com.  279,  where  the  Virginia  case  of  Bells  v.  Gillespie,  5  Rand.  273,  is  considered. 
In  that  case,  the  majority  of  the  court  held  the  limitation  over  to  the  survivor 
an  estate-tail,  and  not  an  executoiy  devise.  For  the  various  forms  in  which  the 
devise,  on  which  Lion  v.  Burtiss  arose,  came  up  for  consideration  by  the  courts, 
see  Edwards  v.  Varick,  5  Denio,  664  ;  Varick  v.  Edwards,  11  Paige,  Ch.  290;  Pel- 
letreau  v.  Jackson  d.  Varick,  11  Wend.  110  ;  Jackson  d.  Varick  v.  Waldi-on,  13 
Wend.  178. 


NATURE   AND    CLASSIFICATION    OF   EXECUTORY    DEVISES.      655 

issue,"  or  "wifcliout  issue,"  and  witli  no  explanatory  words 
defining  the  time  to  which  this  contingency  is  to  apply,  it  is 
construed  to  be  a  general  failure  of  issue  at  any  time,  however 
indefinite  or  remote,  and  which  may  not,  therefore,  happen 
for  many  generations.  The  intention  of  the  devisor  in  such 
case  is,  therefore,  held  to  be,  that  the  estate  shall  not  go  over 
until  such  issue  fail  or  become  extinct,  be  it  at  ever  so 
remote  a  period.^  And  this  often  serves  as  a  clew  by  which 
to  determine  whether  a  limitation  in  a  devise  is  a  remainder 
or  an  executory  devise.  If,  as  explained  above  in  the  case  of 
Nightingale  v.  BurrcU,  the  limitation  be  to  the  first-named 
devisee  and  his  heirs,  and  then  a  limitation  over  in  case  he 
dies  without  issue,  the  question  is,  whether  a  dying  without 
leaving  issue  living  at  the  time  of  his  death  is  meant,  or  a 
general  failure  of  issue.  If  the  former,  then  the  limitation 
over  is  upon  a  fee,  and  is  of  course  an  executory  devise,  to 
take  effect  upon  the  happening  of  a  certain  event  which  must 
occur,  if  at  all,  at  the  first  devisee's  death.  If  the  latter  was 
intended,  then  it  restricts  the  meaning  of  heirs  to  such  as  are 
heirs  of  the  devisee's  body,  and  his  estate  to  an  estate-tail 
which  is  capable  of  sustaining  a  remainder;  and,  consequently, 
the  devise  over  to  the  second  devisee  is  a  remainder. ^ 

§  1756.  Illustrations.  —  This  distinction  between  an  estate 
after  "the  failure  of  issue,"  being  a  remainder  or  an  execu- 
tory devise,  is  illustrated  in  the  following  cases :  Testator 
gave  an  estate  to  B  and  his  heirs  and  assigns;  but  in  case  he 
happened  to  die  intestate  and  without  issue,  then  to  C.  It  was 
held,  that,  inasmuch  as  B  had  a  full  power  of  disposal  of  the 
estate,  what  he  had  given  him  was  not  a  fee-tail  subject  to 
pass  as  a  remainder  upon  an  indefinite  failure  of  issue,  but 
was  an  executory  devise  of  a  fee,  and  the  devise  over  was 
void. 3  A  devise  was  to  a  w^ife  and  daughter,  and  to  the  sur- 
vivor.    If  the  daughter  died  leaving  issue,  they  were  to  take 

1  Bart.  Real  Prop.  §  665;  Watk.  Conv.  200,  Coventry's  note;  Hawley  v. 
Northampton,  8  Mass.  3,  41  ;  Ide  v.  Ide,  5  Mass.  600,  502,  503;  Parker  v.  Parker, 
5  Met.  134,  139  ;  Hall  v.  Priest,  6  Gray,  18,  20  ;  Nightingale  v.  Burrell,  15  Pick. 
104,  112  ;  Turrill  v.  Northrup,  51  Conn.  33;  Kay  v.  Scates,  37  Penn.  St.  39. 

2  Purefoy  v.  Rogers,  2  Wins.  Saiind.  388  b ;  Burt.  Real  Prop.  §§  652,  664  ; 
Hall  V.  Priest,  6  Graj^  17,  18;  Parker  v.  Parker,  5  Met.  134;  Doe  d.  Poor  v. 
Considine,  6  Wall.  475  ;  Sears  v.  Russell,  8  Gray,  92. 

3  Karker's  App.,  60  Penn.  St.  141. 


656  EXECUTORY   DEVISES. 

the  estate  by  descent;  and  if  she  died  before  the  wife,  her 
issue  were  to  enjoy  the  estate  from  the  time  of  her  death; 
but  if  the  daughter  left  no  issue,  the  executor  of  the  devisor 
was  to  sell  the  estate  in  fee,  and  divide  the  money  in  a 
manner  prescribed.  After  the  wife's  death,  the  daughter 
being  unmarried,  she  conveyed  the  estate,  intending  thereby 
to  cut  off  the  entail.  She  then  took  a  deed  from  her  vendee, 
and  afterwards  conveyed  it  to  J.  T.  ;  and  the  question  was,  if 
J.  T.  got  a  fee  thereby.  It  was  held  that  "  issue  "  is  not  a 
technical  term  of  limitation,  like  "heirs  of  the  body,"  when 
used  in  a  deed;  and  when  used  in  a  will,  it  depends  upon  the 
intention  of  the  devisor.  If  by  "issue."  the  testator  meant 
children,  and  not  the  whole  line  of  succession,  it  must  be  a 
word  of  purchase,  excluding  the  rule  in  Shelley's  case.  It 
was  held  here  to  mean  children,  and  the  estate  given  to  the 
daughter  was  not,  therefore,  one  in  tail.  The  "failure  of 
issue  "  was  a  definite  one  at  her  death.  If,  then,  the  ulterior 
limitation  after  "failure  of  issue"  be  for  life,  it  would  imply 
a  definite  faihire,  and  not  an  indefinite  one.  So  it  would  be 
if  to  a  devisee  then  living.  So  if,  on  failure  of  issue,  the 
estate  was  to  go  to  pay  testator's  debts.  An  estate-tail  may 
be  subject  to  an  executory  devise  over,  on  some  condition  or 
event  which  will  abridge  it.  But  such  an  executory  devise 
may  be  defeated  by  common  recovery  suffered  by  tenant  in  tail 
which  enlarges  his  estate  into  a  fee,  and  excludes  all  subse- 
quent limitations,  whether  in  remainder  or  by  way  of  spring- 
ing use  or  executory  devise.  But  a  limitation  over  is  not  an 
executory  devise,  if  after  a  definite  failure  of  issue,  but  a 
remainder.  When  a  limitation  over  is  to  take  effect,  not  on 
an  indefinite  failure  of  issue  of  the  prior  taker,  but  a  failure 
of  "children  "  only,  or  on  failure  of  issue  within  a  given  time, 
then  the  limitation  will  give  the  prior  taker  a  life-estate,  with 
a  contingent  remainder  over,  or  a  springing  interest,  or  a  fee 
with  a  conditional  limitation  over,  as  the  case  may  be.  It 
was  held,  that  here  the  daughter  took  an  estate  for  life,  with 
a  remainder  to  her  children  in  fee,  with  an  alternative  limita- 
tion over  in  the  event  of  her  dying  without  issue  living  at  her 
death. 1 

1  Taylor  v.  Taylor,  63  Penn.  St.  4S1  ;  Kleppner  v.  Laverty,  70  Peiin.  St.  72. 


NATURE    AND    CLASSIFICATION    OF    EXECUTORY    DEVISES.      657 

§  1757.  Distinctions  between  Executory  Devises  and  Remain- 
ders. —  "  An  executory  devise  differs  from  a  reiiiaiuder  in  this, 
among  other  things,  that  a  remainder  must  have  a  particular 
estate  to  support  it,  while  it  is  essential  to  an  executory  de- 
vise that  no  particular  estate  be  in  existence."  "By  execu- 
tory devise,  a  fee  or  a  less  estate  may  be  limited  after  a  fee, 
or  a  fee  may  be  limited  to  commence  infuturo.''^  "An  execu- 
tory devise  cannot  be  barred  or  destroyed  by  any  act  of  the  per- 
son taking  the  preceding  fee,  or  conveyance  even  by  feoffment 
or  matter  of  record."  "An  executory  devise  differs  from  a 
contingent  remainder,  first,  because  an  executory  devise  is 
only  admitted  in  last  wills  and  testaments;  second,  because 
an  executory  devise  respects  personal  as  well  as  real  estate ; 
third,  because  an  executory  devise  requires  no  preceding 
estate  to  support  it ;  fourth,  because,  when  an  estate  precedes 
an  executory  devise,  it  is  not  necessary  that  the  executory 
devise  should  vest  when  such  preceding  estate  determines; 
fifth,  because  an  executory  devise  cannot  be  prevented  or 
destroyed  by  any  alteration  whatsoever  in  the  estate  out  of 
which  or  after  which  it  is  limited. "^  "An  executory  devise 
needs  no  particular  estate  to  support  it,  for  it  shall  descend 
to  the  heir  till  the  contingency  happens.  It  is  not  like  a 
remainder  at  the  common  law,  which  must  vest,  eo  mstanti, 
that  the  particular  estate  determines.  "^ 

§  1758.  Indestructibility  of  Executory  Devises.  —  At  com- 
mon law,  the  effect  upon  a  contingent  remainder  of  the 
destruction  of  the  estate  upon  which  it  depends,  before  it 
shall  have  become  vested,  is  to  destroy  the  remainder,  as  has 
been  heretofore  explained  when  treating  of  such  remainders. 
But  there  is  no  such  connection  between  the  interest  created 
by  an  executory  devise  and  the  previous  estate,  that  the  former 
can  be  affected  by  anything  that  may  happen  to  the  latter 
estate,  with  but  one  exception.  If  the  executory  devise  is 
limited  to  take  effect  on  an  indefinite  failure  of  issue  in  a 
preceding  estate-tail,  with  a  proviso  whereby  the  devise  over 
may  take  effect  upon  the  death  of  the  tenant  at  a  particular 

1  Watk.  Conv.  192,  193,  199-201,  and  Coventry'-s  note  ;  Fearne,  Cont.  Rem. 
418;  2  Bl.  Com.  173;  McEee  v.  Means,  34  Ala.  349;  Miller  v.  Cliittenden, 
4  Iowa,  252  ;  Smith  v.  Hunter,  23  lud.  582. 

2  Taylor  v.  Biddal,  2  Mod.  292. 
VOL.  II.  —  42 


658  EXECUTORY   DEVISES. 

time,  as,  for  instance,  a  devise  to  A  and  the  heirs  of  his  body, 
and  if  A  die  under  the  age  of  twenty -two  years,  then  that  the 
hind  shall  immediately  belong  to  B  in  fee  or  in  tail,  and  A 
suffers  a  recovery  or  bars  the  entail  according  to  law  during 
his  life,  the  executory  interest  will  also  be  barred.  B's  in- 
terest, in  such  a  case,  could  not  be  saved  as  a  remainder, 
because  it  was  to  come  in  abridgment  of  A's  estate-tail,  and 
not  at  its  regular  determination.^  But  where  the  devise  was 
to  J.  D.  in  fee,  but  if  he  did  not  marry  and  have  issue,  then 
there  was  a  devise  over  to  A,  B,  and  C,  and  their  heirs,  and 
J.  D.,  in  his  lifetime,  conveyed  the  estate  by  deed,  but  died 
without  having  issue,  the  devise  over  took  effect,  and  the  con- 
veyance by  J.  D.  only  passed  his  life-estate.^  It  is  said  to  be 
the  essence  of  an  executory  devise  that  it  cannot  be  prevented 
or  defeated  by  the  first  taker  by  any  alteration  of  the  estate 
out  of  which,  or  after  which,  it  is  limited,  or  by  any  mode  of 
conveyance.^ 

§  1759.  Executory  Devise  after  Previous  Estate  -which  fails.  — 
Where  an  executory  devise  is  limited  after  a  previous  estate, 
and  such  previous  estate  fails  altogether,  so  as  to  be  out  of 
the  case,  the  executory  devise  takes  its  place.  Thus,  where 
a  devise  was  made  to  B,  on  condition  that  within  three  months 
after  the  testator's  death  he  executed  a  release,  and  if  he  neg- 
lected to  do  so,  then  a  devise  over  to  C,  and  B  died  in  the 
lifetime  of  the  testator,  so  that  the  devise  to  him  lapsed  and 
failed  altogether,  the  devise  over  to  C  took  effect,  and  was 
valid.*  So,  where  there  was  a  devise  to  A  for  life,  remainder 
to  B  in  fee,  with  a  proviso  that  if  B  died  without  issue,  then 
over  to  persons  named,  and  B  died  in  the  life  of  the  testator, 
it  was  held,  that  the  devise  over  took  effect  as  if  there  had 
been  no  devise  to  B.^ 

§  1760.     Alienability  of  Executory   Devises.  —  On    the    other 

1  2  Prest.  AKst.  120,  121  ;  4  Cruise,  Dig.  349  ;  Watk.  Conv.  202,  Coventry's 
note  ;  Fearne,  Cont.  Rem.  423,  424  ;  Wms.  Real  Prop.  259  ;  Den  d.  Southerland 
V.  Cox,  3  Dev.  394.  Sale  of  the  land  on  execution  against  first  devisee  does  not 
affect  executory  devisee's  right.     Brattle  Sq.  Ch.  v.  Grant,  3  Gray,  146,  150. 

2  Downing  v.  Wherrin,  19  N.  H.  9. 
^  Andrews  v.  Rove,  12  Rich.  544. 

♦  Avelj'n  V.  Ward,  1  Ves.  Sen.  420 ;  Bullock  v.  Bennett,  31  E.  L.  &  Eq.  463. 
5  Mathis  V.  Hammond,  6  Rich.  Eq.  121. 


NATUrwE    AND    CLASSIFICATION    OF    EXECUTORY    DEVISES.       G59 

hand,  in  considcrini;  how  far  the  interest  of  an  executory 
devise  may  be  the  subject  of  conveyance,  it  is  said  that  "one 
of  the  properties  of  executory  devises  is,  that  they  cannot  ])C 
aliened  or  barred  by  any  mode  of  conveyance;  therefore,  until 
the  contingency  happens  upon  which  the  limitation  is  to  take 
place,  executory  devises  create  a  kind  of  perpetuity, "  ^  though 
equity  will  regard  a  conveyance  as  an  agreement  to  convey, 
and  hold  the  grantor  as  trustee  of  the  grantee  when  the  estate 
takes  effect  in  the  grantor. ^  The  above  doctrine  is  that  of 
the  common  law,  since  by  statute  8  &  9  Vict.  c.  lOG,  §  6,  all 
executory  interests  may  now  bo  disposed  of  by  deed.^  And 
the  person  entitled  to  the  executory  estate  may  bar  his  own 
claim  by  release  to  the  first  taker  in  possession,  or  assign  it  in 
equity  for  a  valuable  consideration,  or  devise  it  by  his  last 
v/ill,  independently  of  the  above  statute.^ 

1  Piirefoy  v.  Rogers,  2   Wms.  Saund.   388  d  ;    Wms.   Real  Prop.  260  ;    Brattle 
Sq.  Ch.  V.  Grant,  3  Giay,  161  ;  Hall  v.  Chaffee,  14  N.  H.  215  ;  post,  §  1761. 

2  Edwards  v.  Varick,  5  Denio,  664  ;  Wright  v.  Wright,  1  Ves.  Sen.  409. 
8  Wms.  Real  Prop.  260  ;  Mass.  Gen.  Stat.  c.  90,  §  37. 

4  Watk.  Conv.  202  ;  Jones  v.  Roe  d.  Perry,  3  T.  R.  88. 


6G0  EXECUTORY    DEVISES. 


CHAPTER   LXXXII. 

EXECUTORY   DEVISES  —  INTERESTS   OF   EXECUTORY   DEVISEES. 

§  1761.  Of  the  interest  of  an  executory  devisee  before  it  vests  in  possession. 

1762.  Such  interest  not  an  estate. 

1763.  Distinction  between  vesting  in  interest  and  vesting  in  possession. 

1764.  Necessity  for  the  distinction. 

1765.  Illustration. 

1766.  Illustration. 

1767.  Limitation  after  prior  one  that  fails. 

176S.  Devises  held  executory  though  not  so  in  terms. 

1769.  Executory  devisee  may  restrain  waste. 

1770.  Executory  devise  void  because  first  taker  has  an  absolute  estate. 

1771.  Of  curtesy  in  estate  subject  to  executory  devise. 

§  1761.  Of  the  Interest  of  an  Executory  Devisee  before  it 
vests  in  Possession.  —  Although  this  interest  is  not  a  subject 
of  grant  or  alienation  at  common  law/  it  seems  to  be  estab- 
lished, that  contingent  and  executory  estates  and  possibilities 
accompanied  ivith  an  interest  are  descendible  to  the  heir,  or 
transmissible  to  the  representative  of  a  person  dying;  or  may, 
at  least  in  equity,  be  granted  or  assigned,  and  may  be  devised 
by  him  before  the  contingency  upon  which  they  are  to  depend 
takes  effect.^  Thus,  where,  after  a  devise  to  A  and  his  heirs, 
there  was  a  devise  to  B  and  his  heirs,  upon  A's  dying  under 
twenty-one  years  of  age,  it  was  held,  that,  if  B  survived  the 
testator,  his  interest  would  descend  to  his  heirs,  though  he 
died  before  the  contingency  on  which  it  depended  had  hap- 
pened.^    So  where  the  devise  was  to  M.  and  S.,   daughters, 

1  Ante,  §  1760,  Wright  v.  Wright,  1  Ves.  Sen.  411  ;  6  Cruise,  Dig.  428  ;  King 
V.  Withers,  Cas.  temp.  Talb.  116,  123  ;  Hammington  v.  Rudyard,  cited  10  Rep. 
52  &. 

2  Purefoy  v.  Rogers,  2  Wms.  Saund.  388 1 ;  2  Cruise,  Dig,  426 ;  Den  d.  Man- 
ners V.  Manners,  20  N.  J.  L.  142  ;  Kean  v.  HofFecker,  2  Harring.  103  ;  Lewis  v. 
Smith,  1  Ired.  145  ;  Hall  v.  Robinson,  3  Jones  (N.  C),  Eq.  348  ;  Watk.  Conv. 
199,   n.,  202  ;  Stover  w.  Eycleshimer,  46  Barb.  87  ;  post,  §  1915. 

8  Goodtitle  v.  Wood,  Fearne,  Cont.  Rem.  548,  551  ;  Willes,  211  ;  Goodright  v. 
Searle,  2  Wils.  29  ;  Sheriff  v.  Wrothom,  Cro.  Jac.  509. 


INTERESTS   OP    EXECUTORY   DEVISEES.  661 

and  their  heirs,  and  if  either  died  unmarried,  then  to  Robert 
and  his  heirs,  Robert,  in  the  lifetime  of  the  daughters,  con- 
veyed and  granted  to  his  younger  son  all  right,  title,  claim, 
or  demand  he  had  to  any  estate  either  in  law  or  equity  under 
the  will  of  the  devisor,  and  died  before  the  sisters.  After 
their  death,  unmarried,  Robert's  heir  claimed  the  land  against 
this  grant  to  the  younger  son.  The  Chancellor,  in  giving  an 
opinion,  remarked  that  this  interest  was,  "  in  notion  of  law, 
a  possibility,  which,  though  the  law  will  not  permit  to  be 
granted  or  devised,  may  still  be  released,  as  all  sorts  of  con- 
tingencies may,  to  the  owner  of  the  land,"  and  referred  to 
Thomas  v.  Freeman.  ^  And  he  held  that,  in  this  court  (of 
chancery),  a  grant  of  a  contingent  interest  in  lands  would  be 
sustained,  if  made  for  a  valuable  consideration,  and  denied 
the  right  of  the  heir  to  claim  in  this  case  against  the  younger 
son. 2  In  another  case,  the  court  of  law  held  the  possibility  of 
an  executory  devise  to  be  coupled  with  an  interest;  and  that 
if  the  person  is  ascertained,  and  in  esse,  who  is  to  take  if  the 
devise  takes  effect,  it  may  be  devised  by  such  person  before 
the  contingency  happens.^  But  if  the  person  who  is  to  take 
is  not  ascertained,  there  can  be  no  valid  assignment  or  devise 
of  an  executory  interest.** 

*  Note.  —  By  the  statute  1  Vict.  c.  26,  §  3,  a  man  may  now  devise  any  kind 
of  estate  or  interest  in  real  property  which  would  descend  to  him.  And  all  execu- 
tory interests  may  he  conveyed  by  deed,  by  statute  8  &  9  Vict.  c.  106,  §  6.  Wms. 
RL'al  Prop.  168,  260. 

In  New  York,  expectant  estates  are  descendible,  devisable,  and  alienable  in  the 
same  manner  as  estates  in  possession.  New  York,  Kev.  Stat.  (9th  ed.)  p.  1793, 
§  35  ;  Lalor,  Real  Est.  106  ;  Pond  v.  Bergh,  10  Paige,  140.  And  such  an  interest 
belonging  to  a  minor  in  Kentucky  may  be  sold  by  his  guardian  by  order  of  court. 
Nutter  V.  Piussell,  3  Met.  (Ky. )  166. 

In  Massachusetts,  where  an  executory  devise  or  other  estate  in  expectancy  is  so 
granted  or  limited  to  any  person,  that,  in  case  of  his  death  before  the  happening  of 


^  Thomas  v.  Freeman,  2  Vern.  563. 

2  Wright  V.  Wright,  1  Ves.  Sen.  409  ;  Edwards  v.  Varick,  5  Penio,  682  ;  Watk. 
Conv.  (ed.  1838)  202. 

8  Jones  V.  Roe  d.  Perry,  3  T.  R.  8S  ;  Wntk.  Conv.  199,  Coventry's  note  ; 
2  Prest.  Conv.  269,  270  ;  Goodtitle  v.  Wood,  Willes,  211  ;  Jackson  d.  Varick  v. 
Waldron,  13  Wend.  178. 

*  2  Prest.  Conv.  270  ;  6  Cruise.  Dig.  27,  note  ;  Smith,  Real  Prop.  248  ;  Stover 
V.  Evcleshiiner,  46  Barb.  87.  Nor  will  it  pass  to  an  assignee  in  bankruptcy. 
Bristol  V.  Atwater,  50  Conn.  402. 


662  EXECUTORY   DEVISES. 

§  17G2.  Such  Interest  not  an  Estate.  —  But  still,  SO  far  from 
the  executory  devisee  taking  any  estate,  in  the  proper  sense  of 
the  term,  even  where  the  executory  devise  is  dependent  on 
the  arrival  of  a  future  period  only,  and  not  on  a  contingent 
event,  so  that  the  executory  devise  is  sure  to  take  effect  on 
the  day  appointed,  the  heir  will  take  the  whole  fee  in  the 
interim,  and  not  a  mere  term  bounded  by  the  ascertained 
continuance  of  his  estate.  In  case  the  future  interest  is 
created  by  deed  to  uses,  the  fee  will  be  in  him  from  whom 
the  land  moves,  and  who  corresponds  to  the  heir  in  case  of  a 
devise.  The  reasons,  which  are  technical  in  their  character, 
as  given  by  Mr.  Butler,  are  these :  The  executory  devisee  can 
have  no  estate  in  possession,  as  he  has  no  right  of  present 
enjoyment.  He  has  no  estate  in  remainder,  for  his  right  is 
not  expectant  upon  a  prior  determinable  estate.  He  has  not 
a  contingent  interest,  as  he  is  in  being,  an  ascertained  per- 
son, and  the  event  on  which  he  is  to  take  is  certain;  and  he 
has  not  a  vested  estate,  as  the  whole  is  vested  in  the  grantor 
if  the  limitation  is  by  deed,  or  the  testator's  heir,  if  it  is  by 
will,  until  the  event  happens.  He  has  therefore  no  estate, 
the  limitation  being  executory,  and  conferring  on  him  a  cer- 
tain fixed  right  to  an  estate  in  possession  at  a  future  time.^ 
This  may  seem  somewhat  refined  and  speculative;  but  it  is 
not  difficult  to  imagine  cases  where  distinctions  as  nice  as 
these  may  be  important  in  determining  the  effect  of  wills  and 
conveyances  of  estates,  and  the  rights  of  parties  under  them. 

§  1763.  Distinction  betvreen  vesting  in  Interest  and  vesting  in 
Possession.  —This  distinction  should  be  kept  in  mind,  between 
the  vesting  of  a  right  to  a  future  estate  of  freehold,  the  vesting 
of  2i  freehold  estate  in  interest,  and  the  vesting  of  the  same  in 
possession.  It  may  be  illustrated  by  the  case  of  a  limitation 
to  A  for  two  hundred  years,  remainder  to  the  unborn  son  of 
B,  then  living,  in  tail,  remainder  over.  Now,  for  obvious 
reasons,  the  limitation  to  the  unborn  son  cannot  be  a  remain- 

the  contingency,  the  estate  will  descend  to  his  heirs  in  fee-simple,  such  person  may, 
before  the  happening  of  the  contingency,  sell,  assign,  or  devise  the  premises  subject 
to  the  contingency.     Gen.  Stat.  c.  90,  §  37. 

The  same  is  the  law  of  Maine.     Kev.  Stat.  1883,  c.  73,  §  3. 

1  Feame,  Cont.  Rem.  1,  Butler's  note;  "Watk.  Conv.  199,  Coventrj-'s  note; 
Wms.  Real  Prop.  260  ;  1  Jarm.  Wills,  792. 


INTERESTS    OF   EXECUTORY   DEVISEES.  663 

der,  for  it  is  a  contingent  freehold,  and  there  is  no  freehold 
estate  to  sustain  it.  It  is  not  too  remote  to  be  a  good  execu- 
tory devise,  since  the  son  must  be  born,  if  at  all,  in  the  life 
of  B,  or  a  few  months  after  his  decease ;  and  his  estate  being 
one  in  tail,  would,  if  it  took  effect,  support  the  limitation  of 
the  remainder  over.  If  B  died  without  a  son,  the  devise  over 
at  once  took  effect,  subject  only  to  the  term  of  A  for  years. 
But  if  a  son  was  born  to  B,  the  freehold  would  vest  in  him, 
although  his  enjoyment  or  possession  of  the  land  would  be 
postponed  till  after  the  expiration  of  the  term  in  A.^  And 
the  remainder  over,  expectant  upon  the  determination  of  the 
estate-tail  in  the  son,  would  at  once  become  vested  in  interest, 
if  to  a  person  then  ascertained  in  esse."^  But  if  the  limitation 
to  the  unborn  son  had  been  too  remote  to  take  effect  as  an 
executory  devise,  the  remainder  over,  dependent  upon  it,  would 
have  failed  altogether.^  If,  however,  the  limitation  as  an 
executory  devise  had  been  upon  two  events,  one  too  remote 
and  the  other  not,  and  the  latter  event  had  happened,  the 
devise  would  have  taken  effect  and  been  valid.'* 

§  1764.  Necessity  for  the  Distinction.  —  This  distinction  be- 
tween the  vesting  of  a  right,  and  the  vesting  of  an  interest  in 
possession,  is  often  referred  to  in  determining  whether  a  de- 
vise, for  instance,  is  of  a  contingent  right  depending  upon  the 
happening  of  a  prior  event,  or  of  a  right  which  is  absolute, 
and  the  enjoyment  of  which  only  is  postponed  until  the  hap- 
pening of  such  event.  The  proposition  is  undoubted,  that  a 
contingent  interest  may  vest  in  right,  though  it  does  not  in 
possession,  and  that  contingent  or  executory  interests  may  be 
as  completely  vested  as  if  they  were  in  possession.  And  a 
future  interest  may  vest,  and  afterwards  be  liable  to  be 
divested  by  the  happening  of  some  event. ^  An  estate  to  A, 
on  his  arriving  at  the  age  of  twenty -four,  and  in  case  he  does 

1  Gore  V.  Gore,  2  P.  "Wms.  28  ;  6  Cruise,  Dig.  380 ;  Wilson,  Uses,  68. 

2  6  Cruise,  Dig.  410;  Fearne,  Cont.  Rem.  526. 

8  2  Prest.  Abst.  155  ;  6  Cruise,  Dig.  381,  409  ;  Proctor  v.  Bp.  of  Bath,  2  II.  Bl. 
358;  Wilson,  Uses,  146.     SeeFeame,  Posth.  Works,  283-293. 

*  Minter  v.  Wraith,  13  Sim.  52  ;  Jackson  v.  Phillips,  14  Allen,  572. 

5  Barnes  v.  Allen,  1  Brown,  Ch.  181  ;  Malim  v.  Keighley,  2  "Ves.  Jr.  335,  Sum- 
ner's note  ;  Perry  v.  Woods,  3  Ves.  208,  Sumner's  note  ;  Blanchard  v.  Blauchard, 
1  Allen,  223  ;  McCullough  v.  Fenton,  65  Penn.  St.  419. 


664  EXECUTORY    DEVISES. 

not  attain  to  that  age,  or  leave  issue,  then  to  C  D,  is  a  vested 
estate  in  A,  subject  to  be  divested  if  he  die  before  he  is 
twenty-four  and  without  issue. ^ 

§  1765.  Illustration.  —  The  last  citations  are  mostly  cases  of 
personal  estate ;  but  the  following  is  sufficient  to  explain  what 
has  been  said  upon  the  point  in  the  text,  if  different  rules 
were  adopted  as  to  real  and  personal  estate.  The  testator 
devised  in  this  case  to  the  wife  all  his  estate,  including  the 
realty,  so  long  as  she  remained  his  widow.  If  she  married 
again,  he  gave  her  half  the  personal  and  the  improvement  of 
one-third  of  the  real  estate  for  life.  He  gave  to  N.  and  his 
heirs  all  his  real  estate,  and  willed  that  he  should  come  into 
possession  of  two-thirds  on  the  wife's  marriage,  and  the  other 
third  at  her  decease;  but  that  if  N.  died  before  coming  into 
possession  of  the  estate,  and  should  leave  no  issue,  then  he 
gave  it  all  to  E.  and  G.,  and  their  heirs,  in  equal  shares,  they 
to  come  into  possession  at  the  respective  times  when  N.  was 
to  have  taken  possession  if  he  had  lived.  If  either  E.  or  G. 
came  into  possession  of  the  same,  and  should  have  no  issue, 
his  share  to  go  to  the  survivor  and  his  heirs.  The  wife  did 
not  marry  again.  The  first  question  was,  whether,  as  N.  was 
only  to  come  into  possession  upon  her  marriage,  his  estate  in 
the  two-thirds  was  not  defeated  by  her  dying  unmarried,  and 
that,  therefore,  his  estate  in  the  two-thirds  was  contingent. 
But  the  court  held,  that  the  estate  was  vested  in  N.,  but  sub- 
ject to  the  right  of  the  wife,  so  as  not  to  vest  in  possession  so 
long  as  she  lived  unmarried,  and  liable  to  be  divested  if  he 
died  without  issue  before  her  death.  Had  N.  died  without 
issue  in  the  lifetime  of  the  wife,  E.  and  G.  would  have  taken 
the  estate  by  way  of  executory  devise.^ 

§  1766.  Illustration  —  Another  case  illustrating  the  differ- 
ence there  is  between  devising  a  vested  estate,  of  which  merely 
the  future  enjoyment  depends  upon  a  contingency,  and  the 
devise  of  a  mere  right  to  an  estate  which  depends  upon  a  con- 
tingency for  its  ever  vesting  as  an  estate  in  interest,  would 
be  this:  "A,  having  a  reversion  subject  to  an  estate-tail,  de- 
vised it  to  J.  S.     J.  S.,  in  such  case,  immediately  upon  the 

1  Whitter  v.  Bremridge,  L.  E.  2  Eq.  736, 

2  Ferson  v.  Dodge,  23  Pick.  287. 


INTERESTS   OF   EXECUTORY   DEVISEES.  665 

death  of  the  testator,  liad  a  vested  estate,  such  as  the  testator's 
own  estate  was.  But  the  period  of  its  enjoyment  must  neces- 
sarily be  postponed  till  the  line  of  issue  of  the  tenant  in  tail 
should  have  failed.  The  devise,  in  such  a  case,  is  an  exe- 
cuted, and  not  an  executory  one.  But  if,  instead  of  taking 
this  form,  the  devise  had  been  to  J.  S.  upon  or  after  the 
failure  of  the  issue  of  a  stranger,  it  would,  as  heretofore  ex- 
plained, have  been  an  executory  devise,  and  void  by  reason  of 
being  too  remote. ^  And  the  same  law  prevails  as  to  spring- 
ing and  shifting  uses.^ 

§  1767.  Limitation  after  prior  one  that  fails.  —  At  the  hazard 
of  repetition,  the  following  proposition  is  given,  as  affording 
a  clearer  understanding  of  the  effect  of  successive  limitations 
of  the  same  estate:  All  limitations  subsequent  to  an  executory 
devise  are  themselves  executory.  But  if  an  executory  devise 
fail  to  take  effect  at  all,  by  reason,  for  example,  of  the  devisee 
dying  in  the  life  of  the  devisor,  and  the  devise  lapsing,  or  by 
the  limitation  thereby  made  being  void,  the  subsequent  limita- 
tions of  the  estate  would  take  effect  in  the  same  manner  as 
if  such  void  or  lapsed  devise  had  never  been  made,  unless  the 
subsequent  limitations  are  made  to  depend  for  their  vesting 
upon  the  same  condition  on  which  the  prior  estate  depended, 
and  that,  being  too  remote,  was  void.  In  other  words,  if  the 
estates  limited  were  fees,  these  would  be  deemed  to  be  succes- 
sive limitations,  not  upon  or  after  each  other,  for  each  in 
terms  takes  the  entire  estate,  but  in  the  nature  of  alternative 
limitations,  one  being  a  substitute  for  the  other;  and  if, 
from  any  cause,  any  one  fails  or  is  void,  the  next  in  order 
takes  its  place,  if  within  the  proper  limits  of  perpetuity.^ 

§  1768.  Devises  held  executory  though  not  so  in  Terms.  — 
There  are  cases  where  courts  construe  a  devise  as  an  executory 
one,  though  not  so  in  terms,  in  order  to  give  effect  to  the 
intent  of  the  testator.  Thus,  if  a  devise  were  to  the  heirs  of 
J.  S.,  or  the  oldest  son  of  A.  B.,  and  at  the  death  of  the  tes- 

1  Badger  v.  Lloyd,  1  Ld.  Raj'm.  523  ;  s.  c.  1  Salk.  233.  See  also  Badge  v. 
Floyd,  Comyns,  65  ;  Fearne,  Cont.  Rem.  524,  Butler's  note. 

2  Wilson,  Uses,  78,  79. 

8  Fearne,  Posth.  Works,  239,  292  ;  Lewis,  Perpet.  421  ;  6  Cruise,  Dig.  412  ; 
Fearne,  Cont.  Rem.  508,  and  Butler's  note;  1  Jarm.  Wills,  789-791.  See  ante, 
§  1752  ;  Burbank  v.  Whitney,  24  Pick.  146  ;  Jackson  v.  Phillips,  14  Allen,  572. 


666  EXECUTORY   DEVISES. 

tator  J.  S.  were  alive,  or  A.  B.  had  no  son,  the  devise  would 
literally  be  void,  because  there  was  then  no  such  person 
extant,  and  wills  speak  at  and  from  the  testator's  death.  But 
in  such  cases  courts  hold  the  devise  to  be  future  and  executory 
in  favor  of  whoever  may  be  the  heirs  of  J.  S.  at  his  death,  or 
of  A.  B.  's  son,  whenever  born,  if  from  any  circumstances, 
however  slight,  the  will  admits  of  that  construction.^  So 
where  a  devisor  gave  an  estate  by  his  will  to  his  wife  for  life, 
remainder  to  his  two  children,  and  both  wife  and  children 
were  slaves.  In  his  will,  he  directed  his  executors  to  pur- 
chase the  freedom  of  his  children.  His  wife  died  during  his 
life.  It  was  held,  1st,  that,  upon  his  death,  the  remainder 
dependent  upon  his  wife's  death  took  effect,  but  for  the  in- 
capacity in  the  devisees  to  take  by  reason  of  being  slaves ;  2d, 
that,  when  the  executor  had  complied  with  the  directions  in 
the  will  by  redeeming  them  to  freedom,  the  children  took  as 
executory  devisees  under  the  will.^  And  where  the  devise 
was  to  a  wife  for  life,  with  a  remainder  from  and  after  her 
death,  contingent  in  its  terms,  and  she  declined  to  accept  the 
devise,  it  was  held,  that  the  devise  over  took  effect  as  an 
executory  devise.^  So  where  the  devise  was  to  a  wife  for 
life,  with  remainder  over,  and  she  waived  the  devise  and 
took  her  dower,  the  devise  over  took  effect  at  once,  as  if 
no  prior  estate  had  been  limited ;  though  it  hardly  need  be 
observed,  that  it  was  not  to  illustrate  an  executory  devise, 
but  the  effect  given  by  law,  where  a  prior  devise  fails,  to 
a  subsequent  one,  that  the  cases  mentioned  below  are  cited 
here* 

§  1769.  Executory  Devisee  may  restrain  "Waste.  — If  one  In 
possession  of  lands,  in  which  another  has  an  interest  as  an 
executory  devisee,  undertakes  to  commit  malicious  or  unrea- 
sonable waste,  equity  will  interpose  in  favor  of  such  devisee  to 
prevent  its  commission.^ 

1  6  Cruise,  Dig.  422  ;  Goodright  v.  Cornish,  1  Salk.  226  ;  Doe  v.  Carleton, 
1  Wils.  225  ;  Fearne,  Cent.  Rem.  537  ;  Harris  v.  Barnes,  4  Burr.  2157. 

2  Darcus  v.  Crump,  6  B.  Men.  365. 

8  Thompson  v.  Hoop,  6  Ohio  St.  480. 

*  Yeaton  v.  Roberts,  28  N.  H.  465,  468  ;  Holderby  v.  Walker,  3  Jones  (N.  C), 
Eq.  46 ;  1  Jarm.  Wills,  513. 

6  Robinson  y.  Litton,  3  Atk.  209. 


INTERESTS   OF   EXECUTORY   DEVISEES.  6G7 

§  1770.  Executory  Devise  void  because  first  Taker  has  an 
Absolute  Estate.  —  There  is  one  class  of  cases,  where,  thoujjjh 
there  be  a  devise  in  form,  that  is,  a  limitation  over  after  a 
preceding  estate,  it  may  be  inoperative  and  void,  by  reason 
of  the  first  estate  being  constructively  an  absolute  fee.  The 
question  in  such  cases  grows  out  of  the  character  of  the  first 
estate ;  that  is,  whether  it  is  determinable  or  not.  The  test 
usually  applied  in  such  cases  is,  whether  or  not  the  first  taker 
has  the  right  and  power  of  absolute  disposal  of  the  estate.  If 
he  has,  it  is  construed  to  be  an  unqualified  gift  to  him,  and 
the  devise  over  will  be  void.  Thus,  a  devise  of  certain  lands 
to  one's  son  A  and  his  heirs  and  assigns  forever,  witli  this 
clause,  "It  is  my  will  that  if  my  son  A  shall  die  and  leave 
no  lawful  heirs,  what  estate  he  shall  leave,  to  be  equally 
divided  between  J.  and  N.,  to  them  and  their  heirs  forever;" 
in  terms,  this  is  an  executory  devise  to  J.  and  N.,  expectant 
upon  A's  dying  without  lawful  heirs.  But  as  the  latter  clause 
limits  this  to  only  what  A  "shall  leave,"  it  implies  that  he 
may,  if  he  please,  use  or  dispose  of  the  whole,  and  therefore 
what  he  leaves,  if  anything,  is  his  own,  and  not  something  in 
which  the  testator  had  a  reversionary  interest.^  But  a  devise 
to  A  B,  to  his  heirs  and  assigns  forever,  to  his  use,  behoof, 
and  benefit  in  fee-simple,  but,  should  he  die  without  issue,  it 
is  my  wish  and  will  he  should  give  it  to  J.  S.,  was  held  a 
good  executory  devise  to  J.  S.^  Though  if  an  estate  is  given 
to  one  generally,  with  a  power  of  disposal,  it  carries  a  fee, 
if  it  be  to  one  for  life  in  terms,  it  will  not  enlarge  it  to  a 
fee,  that  there  is  a  power  of  disposal  of  the  reversion  annexed 

1  Ide  V.  Ide,  5  Mass.  500;  ante,  §  1535  ;  Atty.-Gen.  v.  Hall,  Fitzg.  314;  Bur- 
bank  V.  Whitnej',  24  Pick.  146;  Kelley  r.  Meins,  135  Mass.  231  ;  Ranisdell  v. 
Ramsdell,  21  Me.  288  ;  Pickering  i;.  Langdon,  22  Me.  413  ;  Jones  u.  Bacon,  68 
Me.  34;  Jackson  v.  Bull,  10  Johns.  19;  Jackson  d.  Livingston  v.  Robins,  15 
Johns.  169  ;  s.  c.  16  Johns.  568  ;  1  Jarm,  Wills,  Perk.  ed.  792,  n.  ;  Hall  v.  Rob- 
inson, 3  Jones  (N.  C),  Eq.  348  ;  McRee  v.  Means,  34  Ala.  349,  372  ;  Ross  v.  Ross, 
1  Jac.  &  Walk.  154  ;  Bourn  v.  Gibbs,  1  Russ.  &  M.  615  ;  Newland  v.  Newland, 
1  Jones  (N.G.),  463;  McKenzie's  App.,  41  Conn.  607  ;  Howard  v.  Carusi,  109 
U.  S.  725  ;  Hoxsey  v.  Hoxsey,  37  N.  J.  Ecj.  21.  But  see  Smith  v.  Bell,  6  Pet.  68  ; 
Bull  V.  Kingston,  1  Meriv.  314  ;  Steveusou  v.  Glover,  1  C.  B.  448  ;  Sears  v.  Russell, 
8  Gray,  100. 

2  McRee  v.  Means,  34  Ala.  349,  372;  ante,  §  147. 


6C8  EXECUTORY   DEVISES. 

to  the  estate  given. ^  Thus  if  one  devise  certain  lands  to  her 
use,  and  to  be  at  her  disposal,  it  is  a  fee,  although  there  be  a 
devise  over;  but  if  it  were  for  her  use  and  maintenance,  with 
a  power  of  disposal,  if  she  should  require  it,  or  deem  it  expe- 
dient to  do  so,  with  a  devise  over,  it  would  give  her  a  life- 
estate  only,  with  a  conditional  power  of  disposal. ^  And 
where  it  was  given  to  a  wife  to  dispose  of  in  any  way  she  saw 
fit  during  life,  with  remainder  to  J.  S.,  it  was  held  to  be  a 
good  remainder,  and  that  she  could  not  defeat  it  by  any  act  of 
hers.^  Nor  does  a  power  appended  to  an  express  estate  for 
life  enlarge  it  into  a  fee.^  But  where  it  was  given  to  A  for 
life,  or  to  dispose  of  as  she  should  see  fit,  it  was  held  to  be 
a  devise  of  a  fee.^  But  if,  in  a  case  like  that  above  supposed, 
the  power  of  disposal  in  the  first  taker  is  merely  a  technical 
power  of  appointment,  and  not  a  right  to  dispose  of  the  estate 
as  his  own  property,  a  limitation  over  as  an  executory  devise 
may  be  good,  though,  if  such  power  were  executed,  it  might 
leave  nothing  to  pass  by  the  devise  over.^ 

1  Jackson  d.  Livingston  v.  Robins,  16  Johns.  588  ;  Flintham's  App.,  11  Serg.  & 
R.  19;  Morris  v.  Phaler,  1  Watts,  390  ;  Hess  v.  Hess,  5  AVatts,  191  ;  Smith  v. 
Starr,  3  Whart.  62;  Girard  L.  Ins.  Co.  r.  Chambers,  46  Penn.  St.  490. 

2  Terry  v.  Wiggins,  47  N.  Y.  512  ;  Burleigh  v.  Clough,  52  N.  H.  267  ;  and  a 
remainder  over  in  such  case  would  be  good  as  a  vested  estate. 

3  Edwards  v.  Gibbs,  39  i\Iiss.  174  ;  Eail  v.  Dotson,  14  Sm.  &  M.  176. 

*  Andrews  v.  Brumfield,  32  Miss.  115  ;  Smith  v.  Snow,  123  Mass.  323  ;  Tuft  v. 
Tuft,  130  Mass.  461. 

6  Second  Ref.  Presb.  Ch.  v.  Disbrow,  52  Penn.  St.  219.  The  rule  stated  in  the 
above  paragraph  is  generally  followed  by  the  courts.  Thus  in  Hoxsey  v.  Hoxsey, 
37  N.  J.  Eq.  21,  where  the  testator  gave  property  by  will  to  his  wife  for  her  use 
and  enjoyment  during  her  natural  life,  and  after  her  death,  unless  she  shall  have 
earlier  divided  the  same  or  disposed  of  it  by  will,  the  property  to  be  divided  among 
the  children,  and  the  will  also  contained  this  statement:  "I  have  willed  to  my 
wife  all  vny  estate,  real  and  personal,  to  her  and  her  heirs  and  assigns  forever, 
untrammelled  by  any  restrictions  and  conditions,  and  only  to  be  controlled  in  the 
manner  of  managing  the  same,  so  far  as  my  wishes  above  expressed  may  control 
her  in  the  manner  of  disposing  of  the  same,"  it  was  held,  on  a  bill  for  construction 
of  the  will,  that  the  wife  was  given  an  estate  in  fee,  with  absolute  power  of  disposal, 
and  that  the  executory  devise  over  was  repugnant  and  void.  So  in  Kelley  v.  Meins, 
135  Mass.  231 ;  Jones  v.  Bacon,  68  Me.  34  ;  Stuart  v.  Walker,  72  Me.  145  ;  State  v. 
Smith,  52  Conn.  557  ;  Van  Home  v.  Campbell,  100  N.  Y.  287,  310. 

6  Tomlinson  v.  Dighton,  1  P.  Wms.  171  ;  Lerned  v.  Bridge,  17  Pick.  339; 
Rubey  v.  Barnett,  12  Mo.  1 ;  Reid  v.  Shergold,  10  Ves.  370  ;  Audrew.s  v.  Roye, 
12  Rich.  536. 


INTERESTS   OP   EXECUTORY    DEVISEES.  669 

§  1771.     Of  Curtesy  in  Estate    subject   to  Executory  Devise.  — 

It  may  be  added,  that  if  ^feme  covert  is  seised  of  a  fee-siuiple, 
and  there  is  an  executory  devise  over,  and  the  estate  is  de- 
feated by  the  happening  of  the  event  on  which  the  executory 
devise  depends,  the  husband  would  nevertheless  be  entitled  to 
curtesy  in  the  same.^ 

1  6  Cruise,  Dig.  374  ;  ante,  §  322. 


670  EXECUTORY   DEVISES   OF   CHATTEL   INTERESTS. 


CHAPTER  LXXXIII. 

EXECUTORY   DEVISES   OF    CHATTEL   INTERESTS. 

§  1772.  Of  devises  of  chattels. 

1773.  Limitation  of  a  chattel  as  a  freehold,  void  at  common  law. 

1774.  Devise  of  a  term  during  life  carried  entire  term. 

1775.  No  estate-tail  of  a  chattel. 

1776.  Remainder  after  life  term,  when  good. 

1777.  Devise  of  the  use  of  a  chattel  interest. 

1778.  Nature  of  use  often  delines  estate. 

1779.  Devise  of  personalty  for  life,  with  remainder. 

1780.  Devise  of  personalty  for  subsistence  of  devisee. 
178h  Devise  over  after  absolute  devise  is  void. 

1782.  Construction  of  "failure  of  issue  "  in  case  of  devise  of  chattels. 

1783.  Executory  devise  to  unknown  person. 

1784.  Holder  of  term  cannot  affect  executory  devisee's  interest. 

§  1772.  Of  Devises  of  Chattels.  —  The  third  class  of  execu- 
tory devises  is  of  such  as  relate  to  personal  estate  and  to 
chattel  interests  in  lands,,  and  as  arise  from  giving  to  these 
the  qualities  of  freeholds  and  estates  of  inheritance  in  lands. ^ 
§  1773.  Limitation  of  a  Chattel  as  a  Freehold,  void  at  Com- 
mon Law.  —  In  the  theory  of  the  law,  and  by  the  definition  of 
estates,  a  freehold  was  deemed  of  a  higher  and  more  compre- 
hensive nature  thaii-a  term  for  years;  and  consequently,  if 
there  is  a  limitation  of  a  term  for  years  to  one  for  life,  or  for 
such  indefinite  period  of  time  as  would  constitute  a  freehold 
estate,  any  limitation  over  of  the  balance  of  such  term,  how- 
ever long  it  might  be,  by  the  way  of  remainder,  would  be  void. 
On  the  other  hand,  an  estate  of  freehold  could  never  be  de- 
rived from  an  estate  for  years;  and  when  an  estate  for  years  came 
to  one  who  had  freehold  in  the  same  lands,  the  term,  however 
long,  was  merged  in  the  freehold,  and  became  annihilated. ^ 

1  Watk.  Conv.  42,  Morley's  note  ;  Fearne,  Cont.  Rem.  401  ;  Burt.  Eeal  Prop. 
§946. 

2  Burt.  Eeal  Prop.  §§  897,  946  ;  Cooper  v.  Cooper,  2  Brev.  35.5  ;  Duke  of  Nor- 
folk's case,  3  Cas.  in  Ch.  33 ;  Lewis,  Perpet.  84  ;  Fearne,  Cont.  Rem.  4,  n.  401 ; 
1  Jarm.  Wills,  793,  and  Perkins'  note. 

8  1  Cruise,  Dig.  229 ;  Burt.  Eeal  Prop.  §  897. 


EXECUTORY    DEVISES   OF    CHATTEL   INTERESTS.  GTl 

8  1774.  Devise  of  a  Term  during  Life  carried  Entire  Term.  — 
The  consequence  of  these  doctrines  was,  that,  by  the  common 
law,  a  devise  of  a  terra  to  one  during  his  life  was  a  disposition 
of  the  entire  term.  Nothing  Avas  supposed  to  be  left  that  could 
pass,  and  therefore  there  could  be  no  limitation  over  of  a  term 
for  years,  in  remainder  after  an  estate  for  life  or  any  freehold 
estate  in  the  terin.i 

§1775.  No  Estate-tail  of  a  Chattel.  —  Another  peculiarity 
in  respect  to  chattel  interests  in  lands,  as  well  as  personal 
estates  generally,  is,  that  there  can  be  no  estate-tail  predicated 
of  them.  The  statute  de  donis  applies  only  to  tenements, 
that  is,  something  of  which  tenure,  in  the  feudal  sense,  can  be 
predicated,  and  not  to  chattel  interests  or  chattels  them- 
selves.2  And  the  consequence  of  this  is,  that,  if  one  devises 
to  another  a  chattel  interest  to  him  and  the  heirs  of  his  body, 
it  is  a  devise  of  an  absolute  estate,  or  gift  of  the  entire 
property.  2 

§  1776.  Remainder  after  Life  Term,  -w^hen  good.  —  The  legal 
inferences  to  be  drawn  from  these  several  principles  and 
propositions  are,  that  upon  a  devise  of  a  term  for  life,  a  devise 
over  of  a  remainder  of  such  term,  or  with  a  remainder  over 
after  a  devise  to  one  in  tail,  would  be  void.  But,  in  order  to 
carry  out  the  intention  of  testator,  such  limitations  were 
allowed  by  the  way  of  executory  devise;  and  this  was  done  as 
early  as  the  tenth  of  Elizabeth.  And  now  every  future  be- 
quest of  personal  property,  whether  it  be  or  be  not  preceded 
by  a  prior  bequest,  or  be  limited  on  a  certain  or  uncertain 
event,  is  an  executory  bequest,  and  falls  under  the  rules  by 
which  that  mode  of  limitation  is  regulated.** 

*  Note.  —  The  analogy  between  this  class  of  executory  devises  aud  that  where 
a  fee  is  limited  after  another  fee  is  obvious,  when  it  is  considered  that  in  both 
cases  it  is  the  limitation  of  an  estate  to  one,  when  in  terms  the  whole  estate  had, 
according  to  the  rules  of  the  common  law,  been  already  given  to  another. 

1  Tissen  i-.  Tissen,  1  P.  Wms.  500  ;  Burt.  Real  Prop.  §  946  ;  1  Jarm.  Wills, 
Perk.  ed.  893,  n.  ;  Manning's  case,  8  Piep.  95  ;  4  Kent,  Com.  269. 

2  Fearne,  Cont.  Rem.  461,  463;  Burt.  Real  Prop.  §  948;  Lovies'  case,  10  Rep. 
87  ;  Lewis,  Perpet.  318  ;  Seal  v.  Seal,  Prec.  in  Chanc.  421. 

3  Burt.  Real  Prop.  §  948  ;  Fearne,  Cont.  Rem.  463,  and  Butler's  note  ;  2  Rop. 
Leg.  (2(1  ed.)  393  ;  Leventhorpe  v.  Ashbie,  1  RoUe,  Abr.  831  ;  Tud.  Lead.  Cas.  701  ; 
Doe  d.  Lyde  v.  L.vde,  1  T.  R.  593 ;  Powell  v.  Glenn,  21  Ala.  458. 

*  Fearne,  Cont.  Rem.  402,  and  Butler's  note;  Tissen  v.  Tissen,  1  P.   "Wms. 


672  EXECUTORY   DEVISES    OF   CHATTEL   INTERESTS. 

§  1777.  Devise  of  the  Use  of  a  Chattel  Interest.  —  And  the 
distinction  that  once  prevailed  between  the  devise  of  the  use 
of  a  chattel  interest,  and  the  devise  of  such  interest  itself,  is 
now  practically  exploded,  although  executory  devises  are  sus- 
tained upon  a  theoretical  idea  akin  to  such  a  distinction. ^ 

§  1778.  Nature  of  Use  often  defines  Estate.  —  But  the  nature 
of  the  use  intended  by  the  devise  to  be  made  of  the  property 
devised  may  have  the  effect  to  define  the  estate  or  property 
which  the  devisor  gives  by  such  devise ;  as  in  the  cases  above 
cited,  where  the  devise  over  of  property  was  held  void,  be- 
cause the  first  taker,  by  the  terms  of  the  gift,  was  to  have  the 
absolute  and  entire  disposal  of  it.^ 

§  1779.  Devise  of  Personalty  for  Life,  -with  Remainder. — 
According  to  what  is  now  a  well-settled  doctrine,  a  devise  of 
a  personal  thing,  like  money,  may  be  made  to  one  for  life, 
with  a  remainder  over  which  will  be  good  as  an  executory 
devise.^  Thus,  a  limitation  upon  a  devise  to  a  daughter  of 
.£500,  so  that,  if  she  died  under  thirty  years  of  age  unmar- 
ried, the  same  should  be  divided  between  three  others,  was 
held  a  good  limitation  to  the  three.*  So  where  a  testator 
gave  personal  goods  and  chattels  to  be  divided  among  his  six 
children,  and,  if  any  of  his  sons  died  without  lawful  issue, 
his  or  their  parts  to  be  divided  among  the  survivors,  unless 
he  or  they  so  dying  should  leave  a  wife  behind,  in  which  case 
she  was  to  have  a  certain  part,  and  only  the  remainder  was 
to  be  divided,  it  was  held  that  the  limitations  over  were  good 
as  executory  devises.^ 

§  1780.  Devise  of  Personalty  for  Subsistence  of  Devisee.  —  So, 
though  the  first  taker  under  a  devise  be  authorized  to  use  and 
consume  the  property  devised,  and,  to  that  extent,  may  be  said 

500;  Manning's   case,   8   Rep.   95;  2  Prest.  Abst.    4;  2   Bl.  Com.    174;  Duke  of 
Norfolk's  case,  3  Gas.  in  Chanc.  33 ;  Smith  v.  Bell,  6  Pet.  68. 

1  Lewis,  Perpet.  85,  87;  Gillespie  v.  Miller,  5  Johns.  Ch.  21  ;  Merrill  v.  Emeiy, 
10  Pick.  507,  511  ;  1  Jarm.  Wills,  994,  n.  ;  4  Kent,  Com.  269;  Lampet's  case,  10 
Eep.  46  ;  Upwell  v.  Halsey,  1  P.  Wms.  651 ;  Fearne,  Gont.  Rem.  407. 

2  Atty.-Gen.  V.  Hall,  Fitzg.  314;  Bull  v.  Kingston,  1  Meriv.  314. 

8  Upwell  V.  Halsey,  1  P.  Wms.  651  ;  Merrill  v.  Emery,  10  Pick.  507,  511  ; 
Gillespie  v.  Miller,  5  Johns.  Ch.  21  ;  1  Jarm.  Wills,  Perk.  ed.  665,  u.  ;  Mauldiug 
V.  Scott,  13  Ark.  88  ;  Smith  v.  Bell,  6  Pet.  68. 

*  2  Freem.  Ch.  137. 

6  Moffat  V.  Strong,  10  Johns.  12  ;  Keene's  App.,  64  Penn.  273. 


EXECUTORY   DEVISES    OF   CHATTEL   INTERESTS.  673 

to  have  the  disposal  of  it,  3'et,  if  it  be  given  for  the  purpose  of 
the  subsistence,  for  instance,  of  the  devisee,  as  where  provision 
is  thereby  made  for  the  donor's  wife,  the  right  to  make  use  of 
the  property  for  that  purpose  is  in  the  nature  of  a  power, 
rather  than  an  ownership,  and  a  devise  over  of  what  the  first 
devisee  shall  leave  will  be  good  as  an  executory  devise. ^ 

§  1781.  Devise  over  after  Absolute  Devise  is  void.  —  If  the 
gift  to  the  first  taker  be  absolute  in  its  terms,  any  devise  over 
will  be  void  for  repugnancy. ^  And  the  same  rule  will  be 
applied  where  the  use  only  of  the  property  is  given,  when,  from 
the  nature  of  the  property,  its  use  is  its  consumption.  In  this 
case  it  is  construed  to  be  an  absolute  gift.^  But,  in  all  these 
cases,  the  test  is  the  intention  of  the  testator  expressed  in  his 
will.  It  is  by  a  reference  to  that  that  the  character  of  the  gift 
is  determined.* 

§  1782.  Construction  of  "Failure  of  Issue"  in  Case  of  Devise 
of  Chattels.  —  Most  of  the  rules  which  apply  to  the  first  and 
second  classes  of  executory  devises  apply  also  to  the  third. 
There  is,  however,  a  much  stronger  disposition  to  construe  a 
failure  of  issue  on  which  a  limitation  is  made  to  depend,  a 
definite  failure  having  reference  to  the  time  of  the  death  of 
the  ancestor  of  such  issue,  in  the  case  of  devises  of  chattels 
and  chattel  interests,  than  of  freeholds.  And  one  reason  for 
this  has  already  been  explained.  As  there  can  be  no  estate- 
tail  of  such  chattel  interests,  and,  consequently,  no  limitation 
over  upon  the  failure  of  a  line,  whereby  the  intent  of  the  tes- 
tator can  be  carried  out  by  construing  the  executory  limita- 
tion as  a  remainder,  if  the  limitation  cannot  be  held  to  be  on 
a  definite  failure  of  issue,  it  leaves  the  subject  of  the  devise 
the  absolute  property  of  the  first  taker. ^ 

§  1783.     Executory    Devise   to   Unknown    Person.  —  It    is    no 

1  Upwell  V.  Halsey,  1  P.  Wms.  652  ;  Siirman  v.  Surman.  5  Madd.  123.  See 
Rubey  v.  Barnett,  12  Mo.  1  ;  Smith  v.  Bell,  6  Pet.  68. 

2  Merrill  v.  Emery,  10  Pick.  507,  512. 

8  Gillespie  v.  Miller,  5  Johns.  Ch.  21  ;  Randall  v.  Russell,  3  Meriv.  194  ;  1  Jarm. 
Wills,  793,  n. 

*  Smith  V.  Bell,  6  Pet.  69,  where  the  subject  is  fully  treated. 

6  Burt.   Real  Prop.  §  956  ;  Watk.  Conv.   200,  and  Coventry's  note  ;   Hiill  v. 
Priest,  6  Gray,  22  ;  Kirkpatrick  i".  Kilpatrick,  13  Ves.  484  ;  Bronncker  v.  Ba,£;ot, 
1  Meriv.  271  ;  Fearne,  Cont.  Rem.   463,  and  Butler's  note  ;  Lewis,  Perpet.  321  ; 
6  Cruise,  Dig.  396  ;  Powell  v.  Brandon,  24  Mi.ss.  343. 
VOL.   II.  —  43 


674  EXECUTORY   DEVISES   OF   CHATTEL   INTERESTS. 

more  necessary  that  the  person  to  whom  a  limitation  of 
chattel  interests  in  land  or  of  chattels  by  way  of  executory 
devise  is  made  should  be  known  and  ascertained,  or  in  esse,  in 
order  that  the  devise  should  be  valid,  than  in  case  of  a  sim- 
ilar limitation  of  a  freehold.^ 

§  1784.  Holder  of  Term  canuot  affect  Executory  Devisee's 
Interest.  —  Though  the  holder  of  a  term  for  years  is  theoreti- 
cally the  owner  of  it,  where  it  is  devised  to  him  with  a  con- 
tingent limitation  over  to  another,  he  can  do  nothing  to  defeat 
or  injuriously  affect  the  interest  or  estate  of  the  executory 
devisee.  Even  if  the  holder  of  such  a  term  were  to  acquire 
the  inheritance  of  the  estate  by  descent  or  otherwise,  the  term 
would  not  merge  in  the  inheritance  so  as  to  affect  the  interest 
of  an  executory  devisee  of  the  term.  And  the  same  rule  applies 
where  the  executory  estate  is  a  springing  use  created  by  deed 
instead  of  by  will.^  In  the  latter  case,  moreover,  it  was  held, 
that  the  executory  devisee  could  not  grant;  over  his  interest 
at  law,  unless  by  way  of  estoppel,  so  long  as  the  prior  estate 
continued.^ 

1  Amner  v.  Loddington,  1  Rolle,  Abr.  612  ;  6  Cruise,  Dig.  394. 

2  3  Prest.  Conv.  463,  499;  Lee  v.  Lee,  F.  Moore,  268  ;  Fearne,  Cont.  Rem.  421 ; 
Hammington  v.  Eudyard,  cited  10  Kep.  52  a. 

3  Lampet's  case,  10  Kep.  52 ;  Fearne,  Cont.  Rem.  548,  551.  But  see  aide, 
§  1761. 


ACCUMULATIONS    AND   THE   RULE   AGAINST   PERPETUITIES.      675 


CHAPTER   LXXXIY. 

ACCUMULATIONS   AND    THE   RULE   AGAINST   PERPETUITIES. 

§  1785.  Accumulations — -Thellusson  v.  Woodford. 

1786.  Law  favors  free  alienation. 

1787.  Origin  of  the  rule  against  perpetuities. 

1788.  Scope  of  the  rule. 

1789.  Charities  are  an  exception. 

1790.  Estates  must  vest  within  prescribed  limits. 

1791.  All  executory  interests  within  the  rule. 

1792.  When  period  of  restriction  begins  to  run. 

1793.  Of  limitation  determined  by  "  failure  of  issue." 

1794.  "  Failure  of  issue  "  and  the  like  implies  indetinite  failure. 

1795.  Modification  of  the  foregoing  rule  of  construction. 

1796.  Distinctioii  between  failure  of  issue  in  first  taker  and  in  stranger. 

1797.  Particular  cases  —  Definite  failure. 

1798.  Devise  over  may  furnish  a  clue. 

1799.  Alternative  or  substitutionary  devises. 

1800.  Limitation  over  upon  failure  of  issue  of  first  taker. 

1801.  Limitation  over  after  failure  of  stranger's  issue. 

1802.  When  such  limitations  create  estates-tail,  when  executory  devises. 

1803.  What  limitations  over  after  failure,  etc.,  are  good. 

1804.  Limitations  of  chattel  interests. 

1805.  Different  construction  in  case  of  springing  and  shifting  uses. 

1806.  Deeds  more  strictly  construed  than  wills. 

1807.  Illustrations. 

1808.  An  apparent  exception. 

1809.  liimitation  to  the  issue  of  an  unborn  person. 

1810.  Devise  to  a  class. 

1811.  Shifting  uses  limited  after  estates-tail. 

1812.  Rule  not  apjilicable  to  remainders. 

1813.  Use  taking  effect  as  remainder,  always  good. 

1814.  Contingent  remainders  —  Conflict  of  authority. 

1815.  Powers  affected  by  perpetuities. 

1816.  Distinction  between  powers  by  will  and  those  by  deed. 

1817.  Instrument  creating  the  power  furnishes  the  test, 

1818.  How  a  power  must  be  limited. 

1819.  Of  powers  which  are  partially  good. 

1820.  Result  where  power  void  for  remoteness. 

1821.  Illustration. 

Note.     Statutes  against  perpetuities  and  accumulations. 

§  1785.  Accumulations  —  Thellusson    r.    Woodford.  —  Under 

the  head  of  executory  devises  was  included  the  capacity  of  a 


676      ACCUMULATIONS   AND   THE   RULE    AGAINST   PERPETUITIES. 

man  at  common  law  to  lock  up  the  income  of  his  estate, 
whether  real  or  personal,  by  means  of  a  settlement  upon 
trustees,  by  which  the  same  was  rendered  inconvertible  to  the 
use  of  any  one  until  the  object  of  his  bounty  was  born  or 
attained  a  certain  ag3.  And  provided  this  period  did  not 
exceed  any  number  of  lives  in  being,  and  twenty-one  years 
and  a  fraction  after  the  death  of  the  persons  by  whose  lives  it 
was  measured,  it  was  a  legal  settlement,  and  would  be  sus- 
tained by  law.  This  was  illustrated  to  a  remarkable  degree 
by  the  history  of  the  folly  of  one  Thellusson,  whose  will  gave 
rise  to  divers  questions  of  law,  which  are  reported  in  the  noted 
case  of  Thellusson  v.  Woodford.^  By  this  will,  dated  in 
1796,  he  devised  his  real  estate,  the  income  of  which  was 
■£4,000  per  annum,  and  his  personal  estate,  estimated  at  half 
a  million  pounds  sterling,  to  trustees  to  accumulate  for  nine 
lives,  till,  by  the  ordinary  chances  of  life,  the  aggregate  would 
amount  at  interest  to  over  £19,000,000,  and,  in  one  contin- 
gency provided  for,  to  a  much  larger  sum,  then  to  fall  to  two 
or  three  persons.  The  will  had  been  so  drawn  as  to  keep 
within  the  rules  against  perpetuity,  and  the  courts  were 
obliged  to  allow  its  validity  and  that  of  the  provisions  it  con- 
tained. But  so  unreasonable  did  the  rule  appear  to  Par- 
liament that  an  act  was  passed,  39  &  40  Geo.  III.  c.  98, 
whereby  such  accumulations  were  prohibited  for  a  longer 
period  than  the  life  of  the  grantor  or  settler,  or  twenty-one 
years  from  the  death  of  every  such  grantor  or  settler,  devisor 
or  testator,  or  during  the  minorities  of  the  persons  who  would 
be  qualified  to  take  the  accumulated  fund.^  Under  this  act, 
it  was  held  that  a  direction  in  one's  will  to  trustees  to  apply 
the  income  of  personal  estate  for  the  support  of  A,  and  to 
invest  any  surplus  which,  with  the  testator's  personal  estate, 
was  given  over  after  A's  death,  so  far  as  investing  the  surplus 
went,  was  void,  and  the  accumulations  belonged  to  testator's 
next  of  kin.^ 

§  1786.     Law  favors    Free   Alienation.  —  Under    the    rule    of 
common  law,  or  even  that  of  the  statute  8  &  9  Vict.  c.  106, 

1  Thellusson  v.  Woodford,  1  Bos.  &  P.  N.  R.  396  ;  s.  c.  4  Ves.   227;  11  Ves. 
112  ;   Fearne,  Cont.  Rem.  436. 

2  Wms.  Real  Prop.  263  ;  Lewis,  Perpct.  c.  28,  p.  592. 
8  Matthews  v.  Keble,  L.  R.  4  £<!.  467- 


ACCUMULATIONS   AND   THE   RULE   AGAINST   PERPETUITIES.      Gil 

§  6,1  the  result  mij^ht  be,  in  cases  where  the  person  wlio  is  to 
take  is  not  yet  ascertained,  or  not  in  esse,  that  limitatiijns,  if 
there  were  no  restraint  as  to  time,  might  be  so  framed  as  to 
lock  up  estates  in  families  from  alienation  for  any  pei'iod  of 
time  which  the  owner  might  desire,  by  means  of  executory 
devises,  to  take  effect  at  future  times,  and  in  favor  of  unborn 
persons,  however  remote.  The  same  might  also  be  done  by 
means  of  springing  and  shifting  uses  created  by  deeds.  The 
policy  of  the  common  law,  on  the  other  hand,  has  ever  been 
in  favor  of  a  free  alienation  of  lands,  and  every  attempt  to 
clog  this  by  legislation  has  been  unsuccessful.  The  courts 
have  always  found  some  mode  of  reaching  what  the  sound  and 
salutary  policy  of  the  law  demanded.  Thus,  when  the  statute 
de  donis  was  passed,  whereby  estates  were  to  be  locked  up 
by  entails,  the  courts,  in  Taltarum's  case,  as  early  as  the 
12  Edw.  IV.,  suffered  the  estate  to  be  aliened  by  means  of 
common  recoveries,  and  would  not  allow  this  power  to  be 
impaired  or  defeated  by  any  agreement  that  such  recovery 
should  not  be  suffered. ^ 

§  1787.  Origin  of  the  Rule  against  Perpetuities.  —  To  meet 
the  emergency  presented  by  the  opportunity  afforded  for  lock- 
ing up  and  perpetuating  estates  by  moans  of  springing  and 
shifting  uses  and  executory  devises,  the  courts  prescribed 
certain  rules  against  perpetuity  which  have  become  uniform 
and  imperative  wherever  the  common  law  prevails.  These 
rules  were  borrowed  from  the  limits  practically  set  in  the 
limitations  which  had  become  common  in  England,  from 
having  been  inserted  in  the  disposition  of  estates  in  families 
there,  which  were  known  as  "strict  settlements."  These 
were,  substantially,  limitations  first  to  the  use  of  the  settler 
himself  until  a  contemplated  marriage  took  place,  then  to 
the  use  of  the  husband  and  wife  for  life,  with  remainder  to 
the  use  of  their  first  and  other  sons  in  tail;  this  being  as  far 
as  the  limitations  could  go  without  the  intervention  of  trus- 
tees. Now,  as  the  power  to  bar  an  entail  by  a  common  re- 
covery was  incident  to  the  estate  itself,  and  the  heir  in  tail  in 
such  a  case  could,  by  joining  with  the  tenant  for  life  and 
suffering  a  recovery,  defeat  the  entailment  as  soon  as  he  was 

1  See  ante,  §  1760.  2  j^nte,  §§  185,  186. 


678      ACCUMULATIONS    AND   THE   RULE   AGAINST    PERPETUITIES. 

twenty-one  years  of  age,  it  practically  amounted  to  locking 
up  the  land  from  alienation,  only  till  the  son  became  twenty- 
one  years  of  age.^  In  analogy  with  the  practical  operation 
under  this  limitation,  the  courts  adopted,  as  the  period  beyond 
which  estates  might  not  be  so  limited  as  not  to  be  alien- 
able, the  duration  of  a  life  or  lives  in  being  and  twenty-one 
years  after.  This  restriction  is  called  the  "rule  against 
I)erpetuitics. " 

§  1788.  Scope  of  the  Rule.  —  "  Perpetuities  "  are  defined  to 
be  "grants  of  property  wherein  the  vesting  of  an  estate  or 
interest  is  unlawfully  postponed.  "^  And  where  the  terms  of 
the  limitation  had  reference  to  the  infancy  of  the  person  who 
was  to  take,  an  infant  en  ventre  sa  mere  was  held  to  be  within 
the  rule,  and  a  period  might  be  added  to  the  twenty-one  years 
sufficient  to  cover  the  ordinary  time  of  gestation  of  such  child. 
Finally,  it  was  held,  that  if  the  first  life,  by  which  the  limi- 
tation was  to  be  measured,  were  that  of  an  infant  en  ventre  sa 
mere  when  the  limitation  took  effect,  the  child  was  to  be  con- 
sidered as  alive,  and  consequently  the  ordinary  period  of  ges- 
tation of  an  infant,  when  referred  to  as  one  of  the  persons 
whose  lives  were  to  measure  the  duration  of  the  limitation, 
might  be  made  to  precede  and  be  added  to  the  actual  period  of 
life  or  lives  in  being  and  twenty-one  years  and  the  ordinary 
time  of  an  infant's  gestation.  The  history  and  reasons  of  this 
rule  may  be  found  in  the  authorities  cited  below.^ 

§  1789.  [Charities  are  an  Exception  to  the  operation  of  the 
rule  to  this  extent,  that  a  present  gift  to  a  charity  is  never  a 
perpetuity  although  intended  to  be  inalienable.^  And  a  gift 
in  futuro  may  be  made  to  a  charity  to  take  effect  beyond  the 
period  of  the  rule,  provided  there  is  no  intermediate  grant  or 
devise  to  a  private  use ;  although  there  might  be  an  interme- 


1  See  Appendix  A. 

2  Philadelphia  w.  Girard,  45  Penn.  St.  26;  Lunt  v.  Lunt,  108  III.  312;  Sand. 
Uses,  196. 

3  Lewis,  Perpet.  155,  Ch.  II.  ;  1  Jarm.  Wills,  223  ;  Cadell  v.  Palmer,  1  CI.  & 
F.  372,  s.  c.  10  Bing.  140,  and  Tud.  Lead.  Cas.  357  ec  seq.,  where  the  whole  case, 
with  valuable  annotations,  will  be  found ;  Brattle  Sq.  Ch.  v.  Grant,  3  Gray,  146, 
152;  Anderson  i-.  Jackson,  16  Johns.  399  ;  Hawley  v.  Northampton,  8  Mass.  3,  38  ; 
Andrews  v.  Roye,  12  Rich.  542. 

*  Philadelphia  v.  Girard,  45  Penn.  St.  26. 


ACCUMULATIONS    AND   THE   RULE   AGAINST   PERPETUITIES.      679 

diate  charitable  use.^  But  a  grant  or  devise  to  a  charity  after 
one  to  a  private  person,  or  a  grant  or  devise  to  a  ])rivate 
person  after  one  to  a  charity,  is  within  the  rule.  Such  limita- 
tion over,  if  the  interest  be  executory  and  not  a  remainder, 
must  take  effect,  if  at  all,  within  the  prescribed  period, 
otherwise  it  will  be  void,  and  the  preceding  estate  will  be 
absolute.^] 

§  1790.  Estates  must  vest  within  Prescribed  Limits.  —  Not 
only  is  the  rule,  thus  modified,  imperative  in  its  bearing 
upon  the  limitation  of  an  executory  interest,  but  the  limita- 
tion, in  order  to  be  valid,  must  be  so  made  that  the  estate  not 
only  may,  but  must,  vest  in  possession  within  the  prescribed 
period.  If,  by  any  possibility,  the  vesting  may  be  postponed 
beyond  this  period,  the  limitation  will  be  void;^  nor  will  any 
change  of  circumstances  avail  by  which  the  event  on  which  it 
depends  actually  occurs  within  a  life  in  being.  The  possibility 
at  its  creation,  that  the  event  on  which  it  depends  may  be 
too  remote,  is  fatal  to  it.  In  order  to  be  good,  it  must  be 
limited  to  vest  in  possession  within  the  period  prescribed  by 
the  rule  against  perpetuity.*  And  the  effect  of  a  limitation 
over  being  void  by  reason  of  its  being  too  remote  is,  that  the 
instrument,  the  will  for  instance,  is  to  be  construed  as  if  no 
such  clause  were  inserted  in  it,  and  the  first  taker  holds  his 
estate  discharged  of  the  condition  or  limitation  over.  If  this 
be  in  terms  for  life,  he  has  a  life-estate ;  if  in  fee-simple,  he 
has  a  fee-simple  absolute.^  Where  a  vested  estate  is  given 
distinctly,  and  there  are  annexed  to  it  conditions,  limitations, 
powers,  trusts,  including  trusts  for  accumulation,  or  other 
restraints  relative  to  its  use,  management,  or  disposal,  that 
are  not  allowed  by  law,  it  is  those  restraints  and  the  estates 
limited  on  them  that  are  void,  and  not  the  principal  or  vested 

1  Odell  t'.  Odell,  10  Allen,  1. 

2  Hopkins  v.  Grimshaw,  165  U.  S.  342. 

8  Smith's  App.,  88  Penn.  St.  492  ;  Wheeler  v.  Fellowes,  52  Conn.  238. 

*  4  Kent,  Com.  283  ;  Brattle  Sq.  Ch.  v.  Grant,  3  Gray,  146  ;  Wilson,  Uses,  148. 

6  Tud.  Lead.  Cas.  361,  379  ;  Purefoy  v.  Rogers,  2  Wms.  Saund.  388/;  Brattle 
Sq.  Ch.  V.  Grant,  3  Gray,  146,  153,  156  ;  6  Cruise,  Dig.  372  ;  1  Jarm.  Wills,  233, 
783;  Nottingham  v.  Jennings,  1  Salk.  233;  Watk.  Conv.  197,  Coventry's  note; 
Lewis,  Perpet.  170,  657,  658;  Beard  v.  Westcott,  5  Barn.  &  Aid.  801;  Sears  v. 
Russell,  8  Gray,  100. 


680      ACCUMULATIONS   AND    THE   RULE    AGALNST    PERPETUITIES. 

estate.^  If,  by  possibility,  it  may  not  vest  within  the  pre- 
scribed limits  of  time,  it  is  a  void  limitation,  although,  in 
the  end,  it  does  in  fact  happen  that  the  person  might  have 
taken  within  the  time  fixed  by  the  rule.  ^  And  a  limitation 
extending  beyond  the  period  of  perpetuity,  and  therefore  void 
as  to  that  part,  is  void  in  the  whole,  both  as  to  the  period 
within  and  that  beyond  the  limits  of  perpetuity.^  Where  the 
devise  was  to  trustees  to  pay  the  income  of  the  estate  to  tes- 
tator's daughter  for  life,  and,  at  her  death,  to  divide  the 
residue  among  her  children  then  living,  and  the  issue  of  any 
deceased  child  and  their  heirs,  and,  in  default  of  such  child, 
to  convey  to  the  heirs  at  law  of  the  testator,  if  a  child  should 
die,  his  share  was  not  to  go  to  his  lather,  but  the  testator's 
heirs  at  law.  The  devise  over  to  the  heirs  at  law  of  the  tes- 
tator w^as  held  to  be  too  remote,  as  it  related  to  those  who 
should  be  heirs  at  law  at  the  decease  of  such  child  as  might 
be  born  after  the  testator's  death.*  And  the  proposition  is  a 
general  one,  that  if  a  limitation  be,  collectively,  to  a  class, 
and  a  part  of  these  be  beyond  the  limits  of  remoteness,  it 
will  be  void  as  to  all.^  But  if  the  devise  be  dependent  upon 
one  of  two  events,  one  of  which  is  too  remote  and  the  other 
not,  and  the  latter  event  must  happen  within  the  time  pre- 
scribed, it  will  be  a  good  executory  devise.^  The  more  recent 
case  of  Evers  v.  Challis,  though  too  long  and  complicated  in 
its  facts  to  be  given  in  detail  here,  carries  out  the  above  prin- 
ciple in  full.  Lord  Chelmsford  says:  "It  is  conceded  that 
the  limitation  in  question  involves  a  contingency  with  a  double 
aspect,  depending  upon  events  which  are  distinct  and  separate 
from  each  other.  The  alternative  contingencies  must  there- 
fore be  taken  as  if  they  had  been  separately  and  distinctly 
expressed.  Why,  then,  should  the  words  of  contingency,  on 
which  the  void  estate  was  intended  to  be  limited,  affect  the 
valid  estate  to  which  they  do  not  apply  ?  " '' 

1  Pliiladelphia  v.  Girard,  45  Penn.  St.  27. 

2  Wood  V.  Griffin,  46  N.  H.  234  ;  Jackson  v.  Phillips,  14  Allen,  572. 
8  St.  Amour  v.  Rivard,  2  Mich.  294. 

*  Sears  v.  Russell,  8  Gray,  100  ;  Donohue  f.  McNichol,  61  Penn.  St.  78. 
~-   5  1  Jarmyn,  Perk.  ed.  259,  260  ;  Porter  v.  Fox,  6  Sim.  485  ;  Lewis,  Perpet.  457. 
^  Fowler  r.  Depau,  26  Barb.  224;  Armstrong  v.  Armstrong,  14  B.  Mon.  .3-33. 
'  Evers  v.  Challis,  7  H.  L.  Cas.  555  ;  Jackson  v.  Phillips,   14  Allen,  572,  in 


ACCUMULATIONS    AND    THE   RULE   AGALNST   PERPETUITIES.      681 

§  1791.  All  Executory  Interests  within  the  Rule.  — This  rule 
applies  to  every  class  of  executory  devises,  as  well  as  spring- 
ing and  shifting  uses,  whether  the  subject  of  such  limitation 
be  an  estate  of  inheritance,  a  term  for  years,  or  a  i)ersonal 
chattel.^ 

§  1792.  When  Period  of  Restriction  begins  to  run.  —  The 
period  from  which  the  time  allowed  by  the  rule  begins  to  run, 
when  the  limitations  are  created  by  deed,  is  its  date ;  when 
by  will,  it  is  the  death  of  the  testator. ^ 

§  1793.  Of  Limitation  determined  by  "  Failure  of  Issue."  — 
Among  the  forms  of  expression  indicating  the  time  at  which  a 
prior  limitation  is  to  determine,  and  an  executory  limitation 
which  is  to  await  it  is  to  take  effect,  few  if  any  have  led  to 
so  much  discussion,  and  difficulty  of  application,  as  those 
which  relate  to  the  failure  of  issue  in  some  person  designated. 
The  expressions  ordinarily  made  use  of  to  indicate  this  con- 
tingency are  often  equivocal,  whether  the  time  to  which  they 
refer  for  the  failure  of  issue  is  the  death  of  some  pej-son 
named,  or  is  the  period  when  the  issue,  regarded  as  a  partic- 
ular line  of  succession,  shall  have  run  out  and  become  extinct. 
If  the  latter,  it  obviously  may  not  occur  for  a  series  of  gen- 
erations, extending  altogether  beyond  the  period  of  legal 
perpetuity.^ 

§  1794.  "  Failure  of  Issue  "  and  the  like  implies  Indefinite 
Failure. — The  common  law,  from  the  contingency  involved  in 
these  forms  of  expression,  whereby  the  event  of  such  failure 
of  issue  may  not  occur  till  after  a  life  or  lives  in  being  and 

which  case  the  devise  was  to  trustees  to  pay  over  the  income  to  the  son  of  the 
devisor  during  his  life,  and,  at  his  decease,  to  pay  half  the  income  to  his  children 
during  life,  and,  at  their  death,  to  certain  other  trustees.  But  if  the  son  died 
without  children,  the  whole  of  the  fund  was  to  be  paid  over  to  these  other  trustees. 
It  was  held,  that,  as  the  death  of  the  sou  without  children,  if  it  took  place,  must 
be  within  a  life  in  being  at  the  time  the  will  took  effect,  it  would  be  a  valid  devise, 
although,  if  he  left  children,  the  devise  over  might  then  be  too  remote. 

1  Lewis,  Perpet.  169  ;  6  Cruise,  Dig.  380,  396.  But  it  has  been  said  that  courts 
will  be  much  more  willing  to  hold  that  dying  without  issue  is  a  definite  failure  of 
issue  in  cases  of  personal  j>ropprty,  e.  g.  leasehold  interests,  than  in  cases  of  real 
property.  Gable  v.  EUender,  53  Md.  311  ;  Hardy  v.  Wilcox,  58  Md.  180  ;  Synder's 
App.,  95  Penn.  St.  177. 

2  Tud.  Lead.  Cas.  361. 

8  Doe  V.  Cadogan  v.  Ewart,  7  Ad.  &  E.  636  ;  Tud,  Lead.  Cas.  361 ;  Bramlet  v. 
Bates,  1  Sneed,  554. 


682      ACCUMULATIONS    AND    THE    RULE    AGAINST    PERPETUITIES. 

twenty-one  years,  seems  to  adopt  it  as  a  rule,  that  if  an  estate 
be  limited  by  way  of  springing  or  shifting  use,  or  executory 
devise,  upon  a  "dying  without  issue,"  a  "failure  of  issue," 
or  the  like,  if  there  is  no  attendant  expression  indicating  some 
definite  time  at  which  such  failure  is  to  occur,  the  estate  will 
be  deemed  to  be  limited  upon  what  is  called  an  indefinite 
failure  of  issue,  and  too  remote  to  be  valid  within  the  rule 
against  perpetuities.^  An  exception  to  this  rule  occurs  when 
a  testator,  having  no  issue,  devises  property  in  default  or 
failure  of  issue  of  himself,  it  being  held,  in  such  a  case,  that 
the  testator  shows  an  evident  intention  to  make  the  devise 
contingent  on  the  event  of  his  leaving  no  issue  surviving  him, 
and  that  he  does  not  refer  to  an  extinction  of  issue  at  any 
time.  2 

§  1795.  Modification  of  the  Foregoing  Rule  of  Construction.  — 
The  violence  which  was  found  so  often  to  be  done  to  the  in- 
tention of  testators   and  to  common  sense,  in  time  led  to  a 

1  Forth  V.  Cliapman,  1  P.  Wins.  663 ;  Tud.  Lead.  Cas.  361,  556,  558  ;  Wms. 
Real  Prop.  177  ;  Wilson,  Uses,  66,  77 ;  2  Jarm.  Wills,  Bigelow's  ed.  *497  ;  Smith, 
Exec.  Interests,  §  538 ;  Hall  v.  Priest,  6  Gray,  18,  20  ;  Terry  v.  Briggs,  12  Met. 
22;  Allen  v.  Ashley  School  Fund,  102  Mass.  262,  264;  Anderson  v.  Eden,  16 
Johns.  382;  Arnold  w.  Brown,  7  R.  I.  188;  Hall  v.  Chaffee,  14  N.  H.  220,  226- 
239,  and  cases  there  cited ;  Dallam  v.  Dallam,  7  Harr.  &  J.  220  ;  Hollett  v.  Pope, 
3  Harriug.  542;  Newton  v.  Griffith,  1  H.  &  G.  Ill;  Tongue  v.  Nutwell,  13  Md. 
415;  Josetti  v.  McGregor,  49  Md.  210;  Huxford  v.  Milligan,  50  Md.  542;  Gast 
V.  Baer,  62  Penn.  St.  35 ;  Ingersoll's  App.,  86  Penn.  St,  240  ;  Hope  v.  Rusha, 
88  Penn.  St.  127  ;  Daley  v.  Koons,  90  Penn.  St.  247  ;  Lawrence  v.  Lawrence,  105 
Penn.  St.  339;  Mangum  v.  Piester,  16  S.  C.  303;  Chetwood  v.  Winston,  40 
N.  J.  L.  337  ;  Davies  v.  Steele,  38  N.  J.  Eq.  168 ;  Randolph  v.  Wendell,  4  Sneed, 
646.  It  is  said  by  the  courts  in  Ohio,  that  this  rule  has  never  been  adopted  in 
that  State,  and  it  seems  that  in  that  State  such  an  expression  always  imports,  of 
itself,  a  detinite  failure  of  issue.  Niles  v.  Gray,  12  Ohio  St.  320  ;  Piatt  v.  Sintou, 
37  Ohio  St.  353.  "Dying  without  children  "  means  children  living  at  the  death 
of  the  devisee  named.  Morgan  v.  Morgan,  5  Day,  517  ;  Wead  v.  Gray,  8  Mo. 
App.  515.  See  Black  v.  McAuley,  5  Jones  (N.  C),  375;  Gray  v.  Bridgeforth,  33 
Miss.  312  ;  Moffat  v.  Strong,  10  Johns.  12  ;  Kay  v.  Scates,  37  Penn.  St.  39  ; 
Jackson  v.  Dashiel,  3  Md.  Ch.  257  ;  Bell  v.  Scammon,  15  N.  H.  381 ;  Curry  v. 
Sims,  11  Rich.  490.  And  if  the  devise  is  to  A  for  life,  and  after  his  death  to  his 
children  in  fee,  and  if  he  dies  without  issue,  to  B  in  fee,  it  has  been  held  that  the 
word  "  issue  "  is  limited  by  the  preceding  devise  to  children,  and  that  a  definite 
failure  of  issue  is  meant.  Docking  v.  Dunham,  Dougl.  251  ;  Daley  v.  Koons,  90 
Penn.  St.  246 ;  Smith,  Exec.  Interests,  §  541.  Cf.  Bowen  v.  Lewis,  L.  K.  9  App, 
Cas.  900. 

2  2  Jarm.  Wills,  Bigelow's  ed.  *500 ;  French  v.  Caddell,  3  Br.  P,  C.  Toml.  ed. 
257. 


ACCUMULATIONS    AND    THE   RULE    AGAINST    PERPETUITIES.      683 

change  in  respect  to  this  rule,  by  legislation  both  in  England 
and  in  several  of  the  United  States,  which  will  be  noticed  at 
the  close  of  this  chapter,  and  uniformly  led  the  courts  to  seize 
upon  any  expression  in  the  terms  of  the  limitation  which 
could  be  reasonably  construed  as  referring  such  failure  of 
issue  to  the  death  of  the  person  of  whose  issue  the  failure  is 
predicated.  1 

§  1796.  Distiuction  between  Failure  of  Issue  in  First  Taker 
and  in  Stranger.  —  There  is  an  o!)vious  difference  in  the  con- 
struction to  be  applied,  whether  the  limitation  over  be  upon 
the  failure  of  issue  on  the  part  of  the  first  taker,  or  that  of  a 
third  person,  as  between  a  devise  or  conveyance  to  A  and  his 
heirs,  and,  upon  failure  of  issue  of  A,  then  over  to  C,  and  a 
devise  or  conveyance  to  A  and  his  heirs,  and  upon  the  failure 
of  the  issue  of  B,  a  stranger,  then  over  to  C.  In  the  first,  it 
would  be  held  to  be  constructively  an  estate-tail  in  A,  and  the 
limitation  to  C  would  be  a  remainder  which  is  not  affected  by 
the  rule  against  perpetuities. ^  In  the  last,  the  devise  over 
cannot  be  a  remainder,  as  it  destroys  A's  estate  if  it  takes 
effect;  and  not  being  to  take  effect  until  after  an  indefinite 
failure  of  issue,  namely  of  B,  it  is  too  I'emote,  and  therefore 
void.^  A  devise  to  A  for  life,  and,  after  his  death,  to  his 
male  heirs,  and  if  he  die  without  male  heirs,  then  to  his 
female  heirs,  was  held,  as  to  the  female  heirs,  to  be  too 
remote  a  limitation,  and  therefore  void.*  So  in  a  devise  to 
several,  and,  if  either  died  without  lawful  issue,  his  part  to 
descend  to  the  others  with  a  devise  over,  each  devisee  took  an 
absolute  estate,  the  devises  over  being  too  remote.^  It  is 
important,  in  this  connection,  to  note  that  in  many  of  the 
States  such  a  devise  as  to  A  and  his  heirs,  and  upon  the 
failure  of  issue  of  A,  then  over  to  C,  creating  at  common  law 
an  estate-tail  in  A,  would  under  the  statutes  of  the  States  be 

1  4  Kent,  Com.  278  ;  Doe  v.  Ewart,  7  Ad.  &  E.  636,  wliere  most  of  the  previ- 
ous cases  are  cited  and  commented  on;  Hall  y.  Chadee.  14  N.  H.  221-224,  also 
reviewing  the  decided  cases  ;  Dallam  v.  Dallam,  7  Harr.  &  J.  237  ;  Moore  i;.  Howe, 
4  Mon.  199;  Hollett  v.  Pojie,  3  Hairing.  .546;  2  Am.  Law  Mag.  88;  Bell  v. 
Scammon,  15  N.  H.  391. 

2  Whitcomb  v.  Taylor,  122  Mass.  249. 

3  Tiid.  Lead.  Cas.  361  ;  Terry  v.  Briggs,  12  Met.  22. 

4  Conklin  v.  Conklin,  3  Sandf.  Ch.  64. 

6  Shephard  i;.  Shephard,  2  Rich.  E(i.  142. 


684      ACCUMULATIONS    AND   THE   RULE   AGAINST   PERPETUITIES. 

construed  as  creating  either  a  fee-simple  in  A,  or  a  life-estate 
in  A  and  a  fee-simple  in  bis  heirs. ^  In  such  States,  the  limi- 
tation over  to  C  would  be  a  fee  after  a  fee,  and  would  be  a 
conditional  limitation  by  way  of  executory  devise,  as  it  takes 
effect  not  after  but  in  derogation  of  the  previous  estate;  and 
if  there  are  no  circumstances  or  phrases  in  the  will  indicating 
that  a  definite  failure  of  issue  was  meant  by  the  testator,  the 
devise  is  bad,  as  violating  the  rule  against  perpetuities,  as  it 
may  not  take  effect  until  after  a  life  or  lives  in  being  and 
twenty-one  years. ^  And  as  there  can  be  no  fee-tail  in  personal 
property,  such  a  limitation  of  chattels  real  is  always  bad  after 
an  indefinite  failure  of  issue. ^  In  view  of  this  fact,  and  in 
order  to  give  effect  to  the  intention  of  the  testator  so  far  as  is 
possible,  ut  res  magis  valeat  quam  inreat^  the  courts  have 
seized  upon  slight  expressions  of  an  intention  on  the  part  of 
the  testator  to  limit  the  failure  of  issue  to  a  definite  period, 
namely,  the  life  of  the  first  taker  under  the  devise,  and  the 
legislatures  of  several  States  have  enacted  that  such  expres- 
sions as  "dying  without  issue,"  and  the  like,  shall  be  con- 
strued to  mean  a  definite  failure  of  issue,  unless  the  contrary 
appears  to  have  been  the  intention  of  the  testator.^  Whenever 
the  phrase  "dying  without  issue,"  or  the  like,  is  construed 
to  mean  a  definite  failure  of  issue,  if  the  devise  over  is  a 
conditional  limitation,  it  is  not  void  for  remoteness,  since  it 
must  vest  within  the  time  limited  by  the  rule  against 
perpetuities.^ 

§1797.  Particular  Cases  —  Definite  Failure. — In  the  often- 
cited  case  of  Pells  v.  Brown,  the  devise  was  to  Thomas  and 
his  heirs,  and  if  he  died  without  issue,  living  William,  then 

1  See  ante,  §  219,  note  ;  Smith  v.  Brisson,  90  N.  C.  284. 

2  Newton  v.  Griffith,  1  H.  &  G.  Ill  ;  Posey  v.  Budd,  21  Md.  477  ;  s.  c.  22  Md. 
48  ;  Josetti  v.  McGregor,  49  Md.  202 ;  Snyder's  App.,  95  Penn,  St.  177  ;  State  u. 
Tolson,  73  Mo.  326. 

3  Davies  v.  Steele,  38  N.  J.  Eq.  170  ;  Snyder's  App.,  9.^  Penn.  St.  176. 

4  See  post,  note  at  the  end  of  this  chapter.  Busby  i'.  Rhodes,  58  Miss.  240.  In 
New  York,  by  statute,  such  a  limitation  over  after  an  indefinite  failure  of  issue  is 
preserved  as  a  contingent  limitation,  to  vest  at  the  death  of  the  first  taker  without 
issue.     Nellis  v.  Nellis,  99  N.  Y.  511. 

5  Wead  V.  Gray,  8  Mo.  App.  520  ;  Stones  v.  Maney,  3  Tenn.  Ch.  731  ;  Mott  r. 
N.  Y.,  Ont.,  &  W.  Ry.  Co.,  45  N.  J.  L.  226  ;  Brewster  v.  Striker,  2  N.  Y.  19  ; 
Morgan  v.  Morgan,  5  Day,  517  ;  Smith  v.  Brisson,  90  N.  C.  284.  Cf.  Striker  v. 
Mott,  28  N.  Y.  82. 


ACCUMULATIONS    AND    THE    RULE   AGAINST   PERPETUITIES.       685 

to  William,  and  it  was  held  to  be  a  definite  failure  of  issue, 
relating  to  the  time  of  Thomas's  deatli,  for  it  was  contem- 
plated, that,  if  it  took  place  at  all,  it  should  be  in  the  lifetime 
of  William.^  So,  where  the  devise  was  to  the  wife  for  life, 
and  at  her  death  to  the  daughter  in  fee,  "  if  then  living,  and 
her  issue  if  any,  but  if  she  should  then  be  dead,  or  afterwards 
die  leaving  no  issue,"  —  it  was  held,  that  it  intended  issue 
living  at  her  death.^  In  another  case,  the  devise  was  to  R. 
and  J.  and  their  heirs;  and  if  either  of  them  died  before  the 
age  of  twenty-one,  and  without  issue,  then  over.  It  was  held, 
that  the  time  of  the  failure  was  fixed  and  definite ;  namely, 
their  coming  of  age  at  twenty-one.  And  this  was  one  of  the 
numerous  cases  in  the  books,  where,  in  order  to  carry  out 
the  intent  of  the  testator,  "  or  "  was  construed  to  mean  "  and. "  ^ 
Where  the  devise  was  "if  a  son  die  without  heirs,  or  before  he 
becomes  twenty-two  years  of  age,"  etc.,  "or"  was  held  to 
mean  and.'^  A  devise  of  personal  property  was  made  to  the 
wife  of  the  testator,  with  an  implied  limitation  to  her  issue 
after  her,  which  was  equivalent  to  a  devise  in  fee  of  real 
estate,  as  there  is  no  such  thing  as  an  estate-tail  in  personal 
property.  There  was  also  a  devise  over  "  at  her  death,  leav- 
ing no  lawful  issue;  "  and  it  was  held  to  relate  to  the  time 
of  her  death,  so  that  the  devise  over  was  good,  as  an  execu- 
tory one.^     A  devise    was   limited   to  H.   B.   and   her  heirs, 

1  Pells  V.  Brown,  Cro.  Jac.  590 ;  Purefo^'  j;.  Rogers,  2  Wms.  Saund.  388  c. 

2  Griswold  v.  Greer,  18  Ga.  545. 

8  Dallam  v.  Dallam,  7  Harr.  &  J.  220  ;  Tud.  Lead.  Cas.  558  ;  Eastman  v. 
Baker,!  Taunt.  174;  Price  u.  Hunt,  Pollexf.  645  ;  Bell  v.  Scammon,  15  N.  H. 
381  ;  2  Jarm.  Wills,  Bigelow's  ed.  *505  ;  Smith,  Exec.  Interests,  §  550  ;  Hinde 
V.  Lyon,  3  Leon.  64.  It  has  also  been  held  that  a  definite  failure  of  issue  is  meant 
where  the  dying  without  issue  is  expressed  to  be  after  a  certain  age  as  well  as 
before,  and  would  probably  be  so  held  in  any  case  where  the  dying  without  issue 
accompanies  any  event  personal  to  the  devisee,  as  if  he  dies  unmanned  without 
issue,  and  the  like.     2  Jarm.  Wills,  *506  ;  Smith,  Exec.  Interests,  §  551. 

*  Doebler's  App.,  64  Penn.  St.  14  ;  Scott  j;.  Guernsey,  48  N.  Y.  121. 

8  Moore  v.  Howe,  4  Mon.  199.  See  also  Purefoy  v.  Rogers,  2  "Wms.  Saund. 
388  i  ;  Forth  v.  Chapman,  1  P.  "Wms.  663;  Hall  v.  Priest,  6  Gray,  18  ;  2  Jarm. 
Wills,  249,  n.  The  word  "  after,"  in  such  a  case,  does  not  have  the  force  of  the 
word  "at."  So  where  the  devise  was  to  A  in  fee,  and  if  he  die  leaving  no  issue, 
then  after  his  death  to  B,  it  was  held  that  an  indefinite  failure  of  issue  was  meant. 
Walton  V.  Drew,  Com.  Rep.  373  ;  Jones  v.  Ryan,  9  Ir.  Eq.  Rep.  249.  But  see 
Pinbury  v.  Elkin,  1  P.  Wms.  563,  where  "  after "  was  held,  und^r  the  circum- 
stances, to  import  a  definite  failure  of  issue.     And  see  also  Smith,  Exec.  Interests, 


686       ACCUMULATIONS    AND    THE    RULE    AGAINST    PERPETUITIES. 

"provided  she  should  die  without  issue,  born  alive  of  her 
body,  to  heir  her  estate."  This  was  held  to  confine  the  con- 
tingency to  the  having  of  issue,  and  that  such  issue  should  be 
in  esse,  so  as  to  "heir  her  estate,"  when  it  was  in  a  condition 
to  descend  to  heirs;  namely,  at  her  death. ^  So  a  devise  over 
after  a  gift  to  A  and  his  heirs,  if  he  should  die  leaving  no 
issue  behind  him,  was  held  to  be  a  good  executory  devise, 
the  words  "behind  him"  having  been  held  to  refer  to  the 
first  taker's  death,  and  to  restrict  the  leaving  no  issue  to 
that  period.  2 

§  1798.  Devise  over  may  furnish  a  Clue.  —  The  nature  of  the 
devise  over  in  case  of  failure  of  issue  is  a  very  important 
element  in  determining  whether  a  definite  or  an  indefinite 
failure  is  intended.^  Thus  if  the  devise  over  be  of  a  life- 
estate,  dependent  upon  a  failure  of  issue  in  the  first  taker,  the 
idea  that  the  testator  intended  to  have  the  life-estate  wait  for 
an  indefinite  failure  of  issue  is  negatived  by  the  utter  improb- 
ability in  such  a  case  of  the  life-estate  ever  taking  effect.* 
This  inference  only  holds  good,  however,  if  all  the  ulterior 
limitations  are  life-estates.     If  one  is  a  life-estate  and   the 

§  557.  If  the  devise  is  to  A  in  fee,  and  if  he  die  leaving  no  issue,  then  at  his 
death  to  B,  the  phrase  is  held  to  mean  a  definite  failure  of  issue.     Ex  parte  Davies, 

2  Sim.  N.  s.  114  ;    Parker  v.  Birks,  1  K.  &  J.  156  ;    Coltsman  v.  Coltsman,  ]j.  Pi. 

3  H.  L.  121.  Where  the  provision  was  that  "  if  said  A  should  die  leaving  no 
issue,  all  the  residue  and  remainder  of  the  estate  which  should  be  left  at  his  de- 
cease should  go  to  B  for  life,"  it  was  held  that  the  clause  showed  that  the  reference 
was  to  the  death  of  the  first  taker,  and  meant  a  definite  failure  of  issue.  Whit- 
corab  V.  Taylor,  122  Mass.  243.  Where  the  devise  was  to  A  in  fee,  and  if  he  died 
leaving  no  issue,  then  and  in  such  case  to  B,  it  was  held  that  the  words  "  then  and 
in  such  case  "  did  not;^refer  to  time,  and  did  not  make  the  devise  over  a  limitation 
on  a  definite  failure  of  issue.     Josetti  v.  McGregor,  49  Md.  213. 

1  Hall  V.  Chaffee,  14  N.  H.  215. 

2  Porter  v.  Bradley,  3  T.  R.  143  ;  Ide  v.  Ide,  5  Mass.  500,  502.  And  of  course 
the  phrase  "  dying  without  leaving  issue  living  at  the  time  of  his  death  "  means  a 
definite  failure  of  issue.     Barnfield  v.  Wetton,  2  Bos.  &  P.  324. 

3  Taylor  v.  Taylor,  63  Penn.  St.  485. 

4  Trafford  v.  Boehm,  3  Atk.  440  ;  Tud.  Lead.  Cas.  558  ;  Roe  d.  Sheers  v.  Jef- 
fery,  7  T.  R.  589  ;  Ide  v.  Ide,  5  Mass.  500,  502  ;  Davies  v.  Steele,  38  N.  J.  Eq. 
172,  173 ;  Hope  v.  Rusha,  88  Penn.  St.  130  ;  Whitcomb  v.  Taylor,  122  Mass. 
249.  Cf.  Simmons  v.  Simmons,  8  Sim.  22  ;  6  Cruise,  Dig.  391  ;  Fearne,  Cont. 
Kem.  488  ;  Oakes  v.  Chalfont,  PoUexf.  38.  For  the  law  generally  on  this  subject, 
see  Forth  v.  Chapman,  1  P.  Wms.  663  ;  Tud.  Lead.  Cas.  361-366,  556-561  ; 
2  Jarm.  Wills,  418,  c.  42,  and  Perkins'  notes  for  American  cases ;  4  Kent,  Com. 
273-279. 


ACCUMULATIONS    AND   THE   RULE   AGAINST   PERPETUITIES.      687 

others  arc  in  fee,  no  inference  in  favor  of  a  definite  failure  of 
issue  can  be  drawn  from  the  devise  over.^  It  seems  that  in 
those  cases  where  the  ulterior  limitation  is  to  B,  without 
specifying  any  estate,  and  the  devise  is,  by  implication  or  by 
special  statutory  provision,  held  to  carry  a  fee,  this  rule 
would  not  apply,  and  it  is  only  when  a  life-estate  is  expressly 
given,  that  any  inference  in  favor  of  a  definite  failure  of  issue 
can  be  drawn.^  Another  circumstance  which  has  been  con- 
sidered to  show  an  intention  to  provide  for  a  limitation  over 
after  a  definite  failure  of  issue,  is  the  fact  that  the  devise  over 
on  failure  of  issue  is  to  the  survivors,  at  that  time,  of  certain 
persons  living  at  the  testator's  death,  when  no  mention  is 
made  of  their  heirs,  executors,  etc.  The  theory  is  that  such 
persons  probably  would  not  take  if  the  failure  is  held  indefi- 
nite; and  the  testator  probably  had  this  in  mind,  and  there- 
fore his  intention  is  inferred  to  have  been  to  use  the  words 
"dying  without  issue"  as  a  definite  failure.^  Thus  where 
land  was  given  to  A,  one  of  several  children,  in  words  im- 
porting a  fee,  and  other  land  given  in  the  same  way  to  other 
children,  and  there  was  a  provision  that  if  any  of  the  children 
should  die  without  issue,  his  share  should  be  equally  divided 
among  the  surviving  heirs,  it  was  held  that  the  words  "die 
without  issue  "  were  limited  by  the  superadded  words  of  sur- 
vivorship, which  showed  that  the  time  at  which  the  failure  of 
issue  was  meant  was  the  death  of  A.^  But  if  the  limitation 
over  is  to  the  survivors,  their  heirs,  executors,  etc.,  this  rule 
of  inference  does  not  hold;^  or  if  the  words  of  the  will  show 
that  the  ulterior  limitation  is  in  fee,  as  when  the  ulterior 
devise  is  of  the  estate,  or  interest  which  is  given  to  the  first 
taker,  and  that  estate  is  a  fee.^ 

1  Barlow  v.  Salter,  17  Ves.  479;  Pej'ton  v.  Lambert,  8  Ir.  Com.  L.  Kep.  485  ; 
Smith,  Exec.  Interests,  §  559. 

2  Hope  V.  Rusha,  88  Penn.  St.  127  ;  Josetti  v.  McGregor,  49  Md.  213  ;  Chet- 
wood  V.  Winston,  40  N.  J.  L.  337.  But  see  State  v.  Tolson,  73  Mo.  320,  where 
the  ulterior  devise  being  to  persons  by  name,  and  no  mention  of  heirs,  it  was  held 
that  a  definite  failure  of  issue  was  meant. 

8  2  Jarm.  Wills,  *511 ;  Smith,  Exec.  Interests,  §  554  ;  Ingersoll's  App.,  86 
Penn.  St.  240. 

*  Groves  v.  Cox,  40  N.  J.  L.  40  ;  Davies  v.  Steele,  38  N.  J.  Eq.  174. 

5  Smith,  Exec.  Interests,  §  555. 

6  Hope  V.  Rusha,  88  Penn.  St.  127. 


688      ACCUMULATIONS    AND    THE   RULE    AGAINST   PERPETUITIES. 

§  1799.  Alternative  or  Substitutionary  Devises.  —  When  thc 
devise  over  is  expressed  to  be  upon  the  contingency  of  the 
death  of  thc  first  taker,  without  any  words  as  to  issue,  as  a 
devise  to  A,  and  if  he  die,  to  13,  it  is  held  that  a  death  during 
the  lifetime  of  the  testator  is  meant,  since  only  by  this  inter- 
pretation can  any  contingency  be  annexed  to  the  fact  of 
death  ;i  and  this  construction  has  been  applied  in  some  cases 
to  devises  over  in  default  of  issue.  The  cases  where  this 
construction  has  been  used  are  cases  of  alternative  or  substi- 
tutionary devises,  and  where  the  testator  evidently  intended 
the  alternative  devise  as  a  precaution  against  intestacy.  Thus 
where  an  estate  was  given  to  seven  children  in  fee,  equally, 
and  there  was  a  proviso  that  if  any  of  the  children  died  with- 
out issue,  their  shares  should  return  to  the  other  children, 
and  that  if  any  of  the  children  should  die  leaving  issue,  the 
issue  should  take  the  parents'  share,  it  was  held  that  the 
proviso  was  intended  to  act  as  a  substitutionary  clause  in 
case  of  a  lapse,  and  that  as  both  the  events  of  dying  with  and 
dying  without  issue  were  provided  for,  there  was  no  real  con- 
tingency, and  the  case  fell  under  the  rule  in  the  cases  where 
death  alone  is  spoken  of  as  a  contingency,  and  that  the  proviso 
meant  dying  without  issue  in  the  testator's  life.^  In  this 
case,  the  general  frame  of  the  will  showed  that  the  testator 
had  in  mind  a  series  of  provisions  which  were  to  operate  at 
his  death,  and  that  he  intended  to  cover  every  state  of  facts 
that  might  exist  at  that  time,  and  that  he  did  not  have  in 
mind  an  ulterior  disposition  of  the  estate.  The  word  "re- 
turn" is  also  important,  as  showing  that,  in  case  of  a  child 
dying  without  issue,  the  devise  to  the  other  children  was  to 
take  effect  as  a  substitute  for  the  devise  to  him,  and  not  as  a 
limitation  over  after  his  death  without  issue.  So  in  a  case  in 
New  Jersey,  where  the  residuary  devise  was  to  all  the  chil- 
dren, to  be  equally  divided  between  them,  and  in  case  of  the 
death  of  one  or  more  of  the  children  without  leaving  lawful 
issue,  his  or  their  share  or  shares  to  go  to  the  survivors  or 
survivor  of  the  children,  but  if  any  of  the  children  should  die 
leaving  lawful  issue  living,  such  issue  to  take  the  parents' 

^  Grossman  v.  Field,  119  Mass.  170. 
a  Gee  v.  Manchester,  17  Q.  B.  737,  744. 


ACCUMULATIONS   AND    THE   RULE    AGAINST    PERPETUITIES.       689 

share,  it  was  held  that  the  dying  without  issue  meant  in  the 
life  of  the  testator.^  So,  where  the  devise  over  in  case  of 
death  without  issue  was  that  the  property  should  be  sold  and 
divided  amongst  the  remaining  children,  share  and  share 
alike,  the  court  held  that  the  limitation  was  intended  to  be 
substitutional  only,  to  take  effect  upon  the  death  of  the  dev- 
isee without  issue  in  the  life  of  the  testator.  The  subject  of 
the  distinction  between  definite  and  indefinite  failure  of 
issue  was  expressly  put  aside  without  discussion  in  this  case.^ 
In  Leonard  v.  Kingsland  (New  York),^  where  the  devise  in- 
cluded both  real  and  personal  property,  although,  in  the  case 
in  question  personal  property  only  seems  to  have  been  in  dis- 
pute, the  court,  putting  their  decision  on  the  ground  that  the 
phrase  "dying  without  issue,"  in  the  residuary  devise  to  the 
testator's  son,  meant  to  guard  against  the  consequences  of  a 
lapse,  held,  it  was  limited  to  dying  in  the  testator's  life.* 
But  the  rule  was  not  adopted  in  Nellis  v.  Nellis,^  where, 
among  other  devises,  was  a  devise  of  land  to  two  grandsons 
jointly  and  equally,  and  subject  to  certain  legacies  which  were 
made  a  charge  on  the  land,  and  with  a  proviso  that,  in  case 
the  grandsons  should  die  without  lawful  issue,  their  share 
should  go  to  other  grandchildren,  and  if  either  grandson 
should  die  without  issue,  the  survivor  should  take  the  share 
of  the  one  dying.  The  court  held,  that,  under  the  provisions 
of  the  Revised  Statutes  of  New  York,  the  grandsons  took  a 
contingent  estate  in  fee,  which  was  liable  to  be  reduced  to  a 
life-estate  whenever  the  contingency  named  in  the  will  should 
happen,  and  thereupon  the  devise  to  the  other  grandchildren 
took  effect  as  a  conditional  limitation  in  fee,  and  that  the 
proviso  relating  to  dying  without  issue  referred  to  a  dying 
after  the  testator's  death.  The  court  in  this  case  reviews  the 
New  York  decisions  on  this  subject,  and  decides  the  case  on 
the  authority  of  Buel  v.  Southwick.^     When  the  phrase  "  dying 

1  Barrel!  v.  Barrell,  38  N.  J.  Eq.  60. 

2  Hancock's  Est.,  13  Phila.  283. 

8  Leonard  v.  Kingsland,  19  N.  Y.  Weekly  Dig.  473. 

*  So  of  personal  property.     Mickley's  Est.,  13   Phila.  281  ;  s.  c.  92  Penn.  St. 
514. 

6  Nellis  V.  Nellis,  99  N.  Y.  505. 
6  70  X.  Y.  581. 
VOL.  II.  —  44 


690      ACCUMULATIONS    AND    THE    RULE    AGAINST    PERPETUITIES. 

without  issue  "  is  construed  to  mean  so  dying  in  the  life  of  the 
testator,  the  devisee,  if  he  survives  the  testator,  takes  an 
absolute  estate,  not  subject  to  divesting  on  the  failure  of  his 
issue,  and  of  course  the  limitation  over  is  void.^ 

§  1800.  Limitation  over  upon  Failure  of  Issue  of  First  Taker. 
—  As  has  been  already  stated,  where  there  is  a  limitation  to 
one  generally,  or  to  him  and  his  heirs,  with  a  limitation  over 
upon  an  indefinite  failure  of  issue  of  such  first-named  devisee, 
which,  if  construed  to  be  an  executory  devise,  would  be  void, 
by  reason  of  being  too  remote,  the  courts  sustain  it  as  a 
remainder,  and  give  effect  to  it  accordingly,  on  the  ground 
that  the  testator's  making  the  continuance  of  the  estate  in  the 
first  taker  to  depend  upon  his  having  issue  showed  that  it  was 
intended  he  should  take  an  estate-tail,  which,  as  before  said, 
will  sustain  a  remainder,  however  remote  may  be  the  time 
when  it  shall  vest  in  possession.  This  matter  is  fully  illus- 
trated by  Shaw,  C.  J.,  in  Nightingale  v.  Burrell,  before  cited. ^ 
In  Doe  V.  Ellis,  the  devise  was  to  J.  and  his  heirs  and  assigns 
forever;  but  if  he  should  die  without  issue,  then  to  go  to  the 
child  of  which  the  testator's  wife  was  enceinte.  It  was  held 
that  the  subsequent  clause  explained  and  limited  the  term 
"heirs  "  to  mean  issue,  and  the  estate  of  J.  to  be  an  estate-tail, 
and  the  limitation  over  was  held  good.^ 

§  1801.  Limitation  over  after  Failure  of  Stranger's  Issue.  — 
The  distinction  seems  to  depend  upon  the  question,  whether 
the  failure  is  of  such  issue  as  could  have  taken  the  estate  in 
succession,  or  is  of  the  issue  of  one  who  is  a  stranger  to  the 
estate,  or  one  whose  issue  could  not  take  under  the  limitation 
to  issue,  as  distinguished  from  general  heirs.     Thus,  if  the 

1  Leonard  v.  Kingsland,  19  N.  Y.  Weekly  Dig.  473  ;  Blum  v.  Evans,  10 
S.  C.  80. 

2  Nightingale  v.  Burrell,  15  Pick.  112,  113;  Tad.  Lead.  Cas.  361;  6  Cruise, 
Dig.  379  ;  Lion  v.  Burtiss,  20  Johns.  489  ;  Bells  v.  Gillespie,  5  Rand.  273 ;  Terry 
V.  Briggs,  12  Met.  22  ;  Hall  v.  Priest,  6  Gray,  18  ;  Doe  d.  Ellis  v.  Ellis,  9  East, 
382  ;  Bamfield  v.  Popham,  1  P.  Wins.  57,  note.  It  will  be  .seen,  post,  §  1806,  that 
a  different  rale  prevails  in  construing  a  limitation  to  one  and  his  heirs,  and  upon 
his  decease  without  issue,  then  over,  in  case  of  limitations  by  deed  to  uses,  and 
those  hy  will.  If  by  deed,  it  is  not  held  to  be  an  estate-tail.  Wilson,  Uses,  115  ; 
Abraham  v.  Twigg,  Cro.  Eliz.  478  ;  Moore  v.  Rake,  26  N.  J.  L.  574  ;  Sears  v. 
Russell,  8  Gray,  92,  93. 

8  Doe  d.  Ellis  v.  Ellis,  9  East,  383. 


ACCUMULATIONS    AND    THE    RULE    AGAINST    PERPETUITIES.       691 

first  taker  take  a  fee-simple,  and  the  devise  over,  upon  the 
contingency  of  his  dying  without  heirs,  is  to  a  stranger,  such 
limitation  will  be  an  executory  devise,  and  not  a  remainder.^ 
The  court,  by  way  of  illustrating  a  proposition  substantially 
like  the  above,  in  one  of 'the  cases  cited,  say:  "If  the  devisor 
had  by  his  will  said,  'My  son  shall  have  my  land  to  him  and 
his  heirs  in  fee-simple,  so  long  as  any  heirs  of  the  body  of  A 
and  B  shall  be  living,  and,  for  want  of  such  heirs,  I  devise 
my  land  to  W.  R.  and  his  heirs,'  W.  R.  '  shall  take  as  by  a 
future  and  executory  devise.'  " 

§  1802.  When  such  Limitations  create  Estates-tail,  -when  Ex- 
ecutory Devises.  —  So  if  the  devise  over  be  to  A  and  his  heirs, 
if  J.  S.  die  without  issue,  and  J.  S.  is  a  stranger,  it  will  be 
an  executory  devise  to  A,  since  it  is  the  limitation  of  a  free- 
hold in  futuro,  and  too  remote  to  be  good.^  But  where  the 
devise  over  upon  the  failure  of  heirs  of  the  first  taker  is  to 
one  who  would  be  an  heir  of  the  first  devisee,  it  is  construed 
to  create  an  estate-tail  in  the  first  devisee,  and  that  the  word 
"heirs"  must  intend  heirs  of  his  body,  since  it  would  be 
absurd  to  devise  over  to  the  heirs  of  one  who  has,  by  the  same 
devise,  a  fee-simple ;  whereas,  if  the  devise  over  had  been  to 
a  stranger,  the  estate  of  the  first  taker  would  have  been  a  fee- 
simple.^ 

§  1803.  What  Limitations  over  after  Failure,  etc.,  are  good.  — 
But  though  the  cases  thus  far  supposed,  where  an  executory 
devise  over  upon  failure  of  issue  has  been  held  good,  have  been 
those  where  reference  was  had  in  the  limitation  to  the  time  of 
the  death  of  the  ancestor,  yet  it  would  be  sufficient  that  the 
time  must  come,  if  at  all,  within  the  limit  of  twenty-one  years 
after  the  death  of  such  ancestor.  An  executory  devise  limited 
after  the  failure  of  issue  of  the  ancestor  named  would  be  good 

1  Grumble  u.  Jones,  11  Mod.  207;  s.  c.  2  Eq.  Cns.  Alir.  300  ;  s.  c.  Willes,  167, 
note  ;  Gardner  v.  Sheldon,  Vaugh.  270 ;  Tad.  Lead.  Cas.  363  ;  Sears  v.  Ru.ssell, 
8  Gra}',  93. 

■■^  Fearne,  Cent.  Rem.  524,  Butler's  note ;  2  Fearne,  Cont.  Rem.  Smith's  ed. 
§  714  ;  Tud.  Lead.  Cas.  361  ;  Badger  v.  Lloyd,  1  Ld.  Raym.  526  ;  8.  c.  1  Salk.  233  ; 
s.  c.  by  name  of  Badge  v.  Floyd,  Coniyns,  65. 

^  Preston  v.  Funnell,  Willes,  165;  Grumble  v.  Jones,  id.  167,  note  ;  Atty.-Gen. 
V.  Gill,  2  P.  Wms.  369  ;  Webb  v.  Hearing,  Cro.  Jac.  415;  Tyte  v.  Willis,  Cas. 
temp.  Talb.  1 ;  Sears  v.  Russell,  8  Gray,  93. 


692      ACCUMULATIONS    AND   THE   RULE   AGAINST   PERPETUITIES. 

as  such,  if,  connected  with  it,  is  an  express  provision  that 
this  is  to  take  place,  if  at  all,  within  a  period  of  twenty-one 
years  after  the  death  of  such  ancestor.  And  the  same  is  true 
of  shifting  uses,  ^ 

§  1804.  Limitations  of  Chattel  Interests,  —  What  has  been 
said  in  respect  to  estates  of  inheritance  may  be  applied  to  terms 
for  years  limited  by  way  of  executory  devise  after  the  dying  of 
another  without  issue.  If  the  executory  limitation  of  the 
term  be  for  the  life  of  the  devisee  in  esse,  to  take  place  after  a 
dying  without  issue,  it  will  bo  good,  for,  being  for  the  term 
of  life  of  a  person  in  being,  the  period  of  the  failure  of  issue 
could  not  extend  beyond  the  limits  of  perpetuity,  since  it 
must  imply  that  the  failure  was  to  take  place,  if  at  all,  within 
the  limit  of  a  life  in  being. ^ 

§  1805.  Different  Construction  in  Case  of  Springing  and  Shift- 
ing Uses.  — It  may,  however,  be  regarded  as  a  rule  of  construc- 
tion, that  courts  exercise  a  greater  degree  of  liberality  in 
construing  a  dying  without  issue,  etc.,  a  definite  failure  of 
issue,  where  the  limitation  is  by  springing  or  shifting  use, 
than  in  case  of  a  devise,  from  the  disinclination  there  is  to 
so  construe  a  will  as  to  disinherit  the  heir  at  law.^ 

§  1806.  Deeds  more  strictly  construed  than  "Wills.  —  There  is, 
however,  a  greater  strictness  in  respect  to  the  formal  terms 
of  limitation  required  to  define  the  estate  to  be  created  where 
it  is  done  by  deed  raising  and  declaring  uses,  than  when  done 
by  will,  words  tantamount  to  those  of  inheritance  being  neces- 
sary in  a  deed  in  order  to  create  a  fee-simple  or  fee-tail ;  and 
to  create  a  fee-tail,  there  must  also  be  words  in  some  way 
limiting  the  heirs  to  those  of  the  body.  Thus,  where  an  estate 
was  conveyed  to  the  use  of  A  and  his  heirs,  with  a  limitation 
over  in  case  he  died  without  leaving  issue,  this  would  not 
reduce  the  term  "heirs  "to  heirs  of  the  body,  and  turn  the 
estate  into  a  fee-tail,  as  would  have  been  the  case  had  the 
limitation  been  made  by  will;  but  the  first  limitation  would 

1  Lewis,  Perpet.  188  ;  Fearne,  Oont.  Rem.  470  ;  Sheffield  v.  Orrery,  3  Atk.  282  ; 
Heywood  v.  Maunder,  2  R.  Freem.  98 ;  Davies  v.  Speed,  2  Salk.  675  ;  "Wilson, 
Uses,  67,  10.3,  105. 

2  Oakes  v.  Chalfont,  Pollexf.  38;  Fearne,  Cont.  Rem.  488  ;  6  Cruise,  Dip;.  391. 
8  Wilson,  Uses,  111 ;  Fortli  v.  Chapman,  1  P.  Wms.  663  ;  Hallr.  Priest,  6  Gray, 

18,  22. 


ACCUMULATIONS    AND    THE    RULE    AGAINST    PERPETUITIES.      693 

be  a  fee,  and  the  second,  instead  of  a  remainder,  a  sliifting 
use.i 

§  1807.  Illustrations.  —  A  conveyance  to  the  use  of  A  for 
life,  remainder  to  trustees  to  apply  the  rents,  etc.,  until  the 
son  of  D,  who  has  no  son,  shall  have  attained  the  age  of 
twenty-five  years,  and  to  convey  the  same  to  hira  on  attaining 
that  age.  It  was  held  by  Mr.  Fearne,  that  the  limitation  was 
too  remote  to  be  valid.^  By  a  deed  of  covenant  to  stand 
seised,  one  covenanted,  that  if  he  should  die  without  issue  of 
his  body,  then  he  did  give,  grant,  release,  and  confirm  the 
lands,  etc.,  to  E,  and  her  heirs.  It  was  held,  that,  the  cove- 
nantor having  died  without  issue,  no  estate  had  passed  by  the 
deed  to  E,  since  it  was  a  future  use  to  her,  limited  upon  the 
indefinite  failure  of  the  covenantor's  issue. ^  A  husband  and 
wife  levied  a  fine  of  the  wife's  land  to  the  use  of  the  heirs 
of  the  body  of  the  husband  on  the  wife  begotten,  remainder 
to  the  husband's  heirs.  They  had  issue.  Then  the  wife 
died,  then  the  issue  died,  and  then  the  husband.  His  heirs 
claimed  the  estate.  But  it  was  holden,  that,  as  a  remainder 
to  them,  the  limitation  was  void  because  it  had  no  particular 
freehold  estate  to  support  it,  as  the  husband  had  no  estate 
in  the  premises.  And  as  a  springing  use,  it  was  too  remote, 
since,  in  effect,  it  was  limited  after  a  general  failure  of 
heirs  or  issue  of  the  husband  and  wife.^ 

§1808.  An  Apparent  Exception. — What  may  at  first  sight 
seem  to  be  in  opposition  to  this  idea  so  often  repeated,  that 
an  executory  devise  is  too  remote  and  void  if  made  upon  the 
indefinite  failure  of  issue,  is  the  case  of  a  devise  over  upon 
the  failure  of  issue  of  the  testator's  own  body,  which  has  been 
held  to  be  good.  But  this  is  upon  the  ground  that  such  a 
devise  is  only  conditional,  and  must  take  effect,  if  at  all,  at 
the  testator's  death,  and  is  consequently  not  against  the  rule 
of  perpetuities.^ 

§  1809.  Limitation  to  the  Issue  of  an  Unborn  Person.  — An 
inevitable  result  of   the  rule    against   perpetuities    is   that  a 

1  Wilson,  Uses,  109,  115;  Abraham  v.  Twigg,  Cro.  Eliz.  478. 

2  Fearne,  Postli.  Works,  391  ;  Wilson,  Use.j,  146. 

'  Wilson,  Uses,  78 ;  Coltman  v.  Scnhouse,  PoUexf.  536. 

*  Davies  v.  Speed,  2  Salk.  675. 

6  4  Cruise,  Dig.  388  ;  SanforJ  v.  Irby,  3  Barn,  k  Aid.  654. 


G94      ACCUMULATIONS   AND   THE    RULE   AGALXST    PERPETUITIES. 

limitation  to  the  issue  of  an  unborn  person  would  be  void  as 
too  remote,  if  he  is  to  take  as  purchaser. ^ 

§  1810.  Devise  to  a  Class.  —  If  the  devise  be  to  a  class,  some 
of  whom  are,  and  some  are  not,  within  the  prescribed  limits 
as  to  vesting  in  possession,  it  will  be  void  as  to  the  entire 
class.  Thus,  where  a  devise  is  made  to  children,  to  vest  in 
them  when  twenty-five  years  of  age,  not  seriatim,  but  together, 
some  of  whom  are  born  and  living  at  the  testator's  death,  and 
some  may  be  born  after,  so  that  more  than  twenty -one  years 
might  elapse  after  the  deatli  of  the  persons  living  before  some 
of  the  children  would  arrive  at  twenty-five,  the  devise  would  be 
void/-^  In  the  case  of  Evers  v.  Challis,  Wightman,  J.,  gives 
an  explanation  of  the  grounds  upon  whicli  the  case  of  Leake 
V.  Robinson,  cited  below,  was  decided ;  that  if  the  devise, 
in  such  a  case,  were  held  divisible,  and  "  if  divided  after 
the  testator's  death,  it  might  be,  that  the  persons  of  the  class, 
who  were  by  law  incapable  of  taking  in  remainder,  were  the 
very  persons  in  favor  of  whom  he  included  the  whole  class, 
and  therefore,  if  the  devise  were  split,  the  persons  who  would 
take  might  not  be  those  whom  it  was  the  intention  of  the  tes- 
tator to  benefit."  And  yet,  if  the  class  can  be  separated 
within  the  terms  of  the  will,  the  portion  of  them  who  can  take 
lawfully  will  do  so,  while  the  other  will  not.^  Accordingly,  it 
w^as  held,  that  where  this  limitation  was  to  a  class,  and  was 
void  as  to  some  by  being  too  remote,  it  might  be  otherwise  as 
to  others,  as  where  the  devise  was  to  the  sons  of  A,  and,  on 
the  testator's  death,  each  son  to  take  for  life,  with  remainder 
to  his  children.  If  A  has  sons  living,  the  limitation  to  them 
would  be  good,  but  would  be  void  for  remoteness  as  to  tlie 
sons  of  the  sons  of  A  born  after  the  testator's  death.-*  The 
following  case  will  also  serve  to  explain  the  foregoing  propo- 
sition in  relation  to  an  executory  devise  to  a  class :  S.  B.  de- 
vised his  real  and  personal  estate  in  trust,^  among  other  things, 
to  sell  the  same  and  pay  the  income  to  his  daughter  W.,  and, 
from  and   after  her   decease,  in   trust  for   the  testator's  two 

1  Hay  V.  Coventry,  3  T.  R.  86  ;  and  that  such  a  limitation  would  be  void  as  a 
remainder,  see  ante,  §  1584. 

2  Leake  v.  Robinson,  2  Meiiv.  363  ;  Philadelphia  v.  Girard,  45  Penn.  St.  27. 
8  Evers  v.  Challis,  7  H.  L.  Cas.  545,  547.     See  Jarm.  Wills,  246. 

*  Lowiy  V.  Muldrow,  8  Rich.  Eq.  241. 


ACCUMULATIONS   AND   THE    RULE   AGAINST   PERPETUITIES.      695 

grandsons,  H.  W,  and  C.  W.,  and  all  and  every  other  the  child 
or  children  of  his  daughter  thereafter  to  be  born,  if  any,  or 
tiie  issue    of   such  grandsons   respectively,  or   other  child  or 
children,  in  shares  to  be  appointed  by  his  daughter,  and,  in 
default  of  such  appointment,  in  trust  for  all  his  grandsons  and 
other  the  child  or  children  of   his  daughter  thereafter  to  be 
born,  if  any,  and  the  issue  of  such  grandsons  or  other  child  or 
children,  who,  being  a  son  or  sons,  shall  live  to  attain  the  age 
of   twenty-one   years,  etc.,  equally  to   be  divided   between  or 
amongst   them,   such    issue   to   take    a   parent's  share.      The 
daughter  released  her  right  of   appointment ;  and  a  question 
then  arose,  whether  the  otiier  limitation  was  too  remote  or  not. 
The  Master  of  the  Rolls  construed  the  will  to  apply  both  to 
the  living  grandsons  and  the  other  children  of   the  testator's 
daughter,  as  well  as  to  the  issue  of  the  grandchildren  ;  that  the 
words  were  not  confined  to  the  issue  of  the  grandchildren,  but 
applied  to  the  whole  class,  and  that  the  class  consisted  of  three 
sets   of   persons ;    namely,   the   existing    grandsons   who   are 
named,  grandchildren  thereafter  to  be  born,  and  the  issue  of 
these  two  previous  descriptions  of  grandchildren  who  may  have 
died  before  the  period  of  distribution,  all  of  whom  must  attain 
twenty-one  years  before  the  division  of  the  fund  took  place. 
The  gift  by  the  will,  therefore,  to  the  grandsons  named,  in- 
cluded only  a  portion  of  a  class  which  was  not  to  be  ascer- 
tained until  a  period,  which,  by  possibility,  might  exceed  the 
life  of  W.,  the  daughter,  and  twenty-one  years  after  her  de- 
cease, and  was  accordingly  held  to  be  too  remote.     Thus,  it  is 
said,  before  the  death  of  W.,  the  grandchildren  alive  when  the 
testator  died  might  all  have  died  leaving  children,  and  some  of 
her  children  might  also  have  been  born  after  the  death  of  the 
testator,  and  died  before  her,  and  left  children  under  twenty- 
one,  and  all  these  might  have  been  infants  at  the  death  of  the 
daughter.     Of   these,   some  infant   child  of   W.,  alive   at  her 
decease,  might    have    died  in    infancy,  leaving   children   who 
would  not  have  attained  twenty-one,  and,  therefore,  would  not 
have   attained   vested    interests   until   more   than    twenty-one 
years  after  the  death  of  W.,  the  daughter.     Nor  did  it  make 
any  difference  in  the  construction  to  be  given  to  the  will,  that 
such  did  not  in  the  event  prove  to  be  the  case,  since  reference 


696      ACCUMULATIONS   AND   THE   RULE   AGAINST   PERPETUITIES. 

can  only  be  had  to  the  time  of  the  will  taking  effect ;  for  it 
must  be  good  or  bad  in  its  inception,  if  at  all.i  But  in  James 
V.  Wynford,  the  Vice-Chancellor  was  inclined  to  hold  that  a 
gift  to  an  individual,  named  and  known  to  the  testator,  would 
not  wholly  fail,  because  there  were  words  superadded  by  the 
testator,  including  a  class  to  take  with  him,  as  to  which  class 
the  gift  must  wholly  fail,  because,  as  to  some,  it  might  be  too 
remote.^  And  in  Cattlin  v.  Brown,  the  Vice-Chancellor  lays 
down  a  rule  upon  this  point,  "  that  where  a  gift  or  devise  is  of 
a  given  sum  of  money  or  property  to  each  member  of  a  class, 
and  the  gift  to  each  is  wholly  independent  of  the  same  or 
similar  gift  to  each  and  every  other  member  of  the  class,  and 
cannot  be  augmented  or  diminished  whatever  be  the  number  of 
the  other  members,  then  the  gift  may  be  good  as  to  those 
within  the  limits  allowed   by  law."^ 

§  1811.  Shifting  Uses  limited  after  Estates-tail  are  not  within 
the  rule  of  law  against  perpetuities,  as  it  is  called,  which 
was  made  to  prevent  the  locking  up  of  estates  for  an  undue 
period  of  time,  because  the  tenant  in  tail,  under  such  cir- 
cumstances, has  full  power  of  defeating  such  use,  and  of 
converting  it  into  an  alienable  estate,  instead  of  its  being  held 
as  not  susceptible  of  alienation.* 

§  1812.  Nor  does  the  Rule  apply  to  Remainders,  whether  con- 
tingent or  vested  ;  and  one  reason  is,  that,  if  the  remainder  be 
limited  upon  an  estate-tail,  the  tenant  in  tail  can,  at  com- 
mon law,  bar  the  remainder  by  barring  the  entail.^  The  lan- 
guage of  Lord  St.  Leonards  on  this  subject  is  :  "  Where  a 
limitation  is  to  take  effect  as  a  remainder,  remoteness  is  out 
of  the  question ;  for  the  given  limitation  is  either  a  vested  re- 
mainder, and  then  it  matters  not  whether  it  ever  vests  in  pos- 
session, because  the  previous  estate  may  subsist  for  centuries 
or  for  all  time ;  or  it  is  a  contingent  remainder,  and  then  by 
a  rule  of  law,  unless  the  event  upon  which  the  contingency 
depends  happen  so  that  the  remainder  may  vest  eo  instanti, 

1  Webster  v.  Boddington,  26  Beav.  128  ;  Greenwood  v.  Roberts,  15  Beav.  92. 

2  James  v.  Wynford,  1  Smale  &  G.  40,  58. 

8  Cattlin  V.  Brown,  11  Hare,  372,  377  ;  Griffith  v.  Pownall,  13  Sim.  393. 
*  Gilb.  Uses,  Sngd.  ed.  157,  n. ;  Wilson,  Uses,  74;  Goodwin  v,  Clark,  1  Lev.  35. 
6  Watk.  Conv.  193,  194,  Coventry's  notes  ;  Nicolls  v.  Sheffield,  2  Bro.  Ch.  C. 
215. 


ACCUMULATIONS    AND   THE   RULE    AGAINST   PERPETUITIES.      697 

the  preceding  limitation  determines,  it  can  never  take  effect 
at  all."  ^  It  ought  to  be  stated,  however,  that  the  court  in  the 
case  cited  below  are  inclined  to  question  the  correctness  of 
the  rule  as  here  stated,  on  the  ground  that  under  it  there 
might  be  an  unlimited  succession  of  contingent  particular 
estates,  which  would  take  effect  so  long  as  the  persons  who 
were  to  take  came  into  being  during  the  continuance  of  a 
prior  estate,  so  as  to  take  it  at  the  expiration  of  such  prior 
estate.  And  that  the  law  will  not  allow  this,  they  cite  a  case 
from  East.2 

§  1813.  Use  taking  Effect  as  Remainder,  always  good.  —  So  if 
a  future  limitation  by  the  way  of  use  can  take  effect  as  a 
remainder,  no  remoteness  of  time  or  event,  however  great,  can 
affect  the  validity  of  such  a  limitation.^ 

§  1814.  Contingent  Remainders —  Conflict  of  Authority.  — Lord 
St.  Leonards's  statement  has  been  approved  and  supported  by 
Mr.  Williams  in  his  work  on  Real  Property,^  also  by  the 
English  Commissioners  on  Real  Property ;  ^  but  is  contro- 
verted by  Mr.  Gray  in  his  work  on  Perpetuities,^  and  by  Mr. 
Lewis.'^  One  reason  why  contingent  remainders  should  not  be 
subject  to  the  rule  against  perpetuities  was  that  they  might  at 
any  time  be  destroyed  by  the  tenant  of  the  particular  estate, 
either  by  fine  or  recovery  in  case  of  an  estate  in  tail,  or  by 
feoffment  or  fine  in  case  of  an  estate  for  life,  and  therefore  the 
power  of  alienation  was  not  suspended.  This  reason  seems  no 
longer  applicable  to  the  case,  since  by  statute  in  most  of  the 
United  States  contingent  remainders  are  no  longer  destruc- 
tible.^ In  New  York  there  is  a  statute  which  provides  that 
only  two  life  estates  can  be  limited  before  a  remainder.  This 
statute  applies  to  both  vested  and  contingent  interests;  but 
with  this  difference:  if  the  remainder  limited  after  more  than 
two  life-estates  is  vested,  it  will  come  into  possession  after  the 

1  Cole  V.  Sewell,  4  Dm.  &  Warr.  28. 

2  Wood  I'.  Griffin,  46  N.  H.  235;  Seaward  v.  Willock,  5  East,  206. 
8  Cole  V.  Sewell,  4  Dm.  &  Warr.  28. 

*  13th  ed.  274-277. 
6  Eeport,  vol.  3,  pp.  29-31. 
6  §§  284-298. 

T  Perpet.  c.  16  ;  Suppl.  97-153.  See  also  1  Jarm.  Wills  (4th  ed.),  255-258, 
260-263;  Tud.  Lead.  Cas.  (3d  ed.)  470-475. 

8  A7itc,  note  at  the  end  of  chapter  Ixix.;  Gray,  Perpet.  §  286. 


G98      ACCUMULATIONS    AND   THE   RULE    AGAINST   PERPETUITIES. 

first  two  life-estates,  the  statutes  rendering  the  others  void  ; 
while  if  the  remainder  is  contingent,  it  will  not  take  effect  at 
all,  unless  it  is  ready  to  do  so  at  the  termination  of  the  second 
life-estate.^  In  Massachusetts,  the  courts  have  applied  the 
rule  against  perpetuities  to  contingent  remainders  without 
question. 2  And  in  a  case  decided  in  Maryland,  where  A  gave 
an  equitable  life-estate  to  C,  and  a  similar  estate  to  his  chil- 
dren surviving  him,  and  remainder  absolutely  to  the  issue  of 
such  children,  it  was  held  that  the  last  limitation  was  void, 
as  violating  the  rule  against  perpetuities.^  [Moreover,  it  is 
evident  that  Mr.  Gray  has  drawn  some  of  the  American  courts 
into  alignment  with  his  view.^] 

§  1815.  Powers  affected  by  Perpetuities.  —  The  time  within 
which  a  power  of  appointment,  etc.,  must  be  limited  to  be 
executed,  and  must  be  executed  in  order  to  be  a  valid  power 
or  make  a  valid  execution,  is  materially  affected  by  the  rule  of 
law  against  perpetuities.  This  restriction  applies  to  a  limita- 
tion made  through  the  medium  of  powers,  to  the  same  extent 
as  to  one  made  by  any  other  mode.  If,  therefore,  a  limitation 
made  by  the  deed  creating  the  power  would  have  been  void 
because  of  its  remoteness,  it  cannot  be  made  by  an  appoint- 
ment to  such  nses  under  the  power  thereby  created.  Thus  if 
an  estate  were  limited  to  A  for  life,  remainder  to  his  unborn 
son  for  life,  remainder  to  the  sons  of  his  unborn  son,  the 
limitation  would  be  too  remote  so  far  as  the  grandchildren 
were  concerned,  and  therefore  void.  And  if,  instead  of  that, 
the  limitation  had  been  to  A  for  life,  with  power  to  appoint 
to  his  children,  and  he  appoints  to  a  son  born  after  the  deed 
made,  with  remainder  to  the  sons  of  such  son,  the  appointment 
would  be  void  as  to  such  grandchildren,  as  being  too  remote. 
The  case  here  put  is  that  of  a  special  and  limited  power.  But 
if  the  power  be  a  general  one  in  the  donee,  whereby  he  can 
appoint  to  whom  he  please,  and  such  an  estate  as  he  pleases, 
it  is  regarded  as  so  nearly  like  a  fee  in  him,  that  provided  the 
appointment,  when  he  makes  it,  is  not  too  remote,  it  matters 

1  Purdy  V,  Hayt,  92  N.  Y.  446. 

2  Levering  v.  Lovering,  129  Mass.  97  ;  Hillb  v.  Simonds,  125  Mass.  536 ;  Otis 
1-.  McLellan,  13  Allen,  339. 

3  Heald  V.  Heald,  56  J[d.  300. 

*  Chilcott  V.  Hart,  23  Colo.  40 ;  s.  c.  35  L.  R.  A.  41  ;  s.  c.  45  Pac,  Rep.  391. 


ACCUMULATIONS    AND    THE   RULE    AGALNST   PERPETUITIES.      699 

not  though  the  limitation,  as  made,  would  not  have  been  good 
if  made  by  the  deed  creating  the  power.  Thus,  to  carry  out 
the  same  case  as  above  supposed,  except  that  the  donee  has  a 
general  power,  if  property  is  conveyed  to  A,  with  power  to 
appoint  by  deed  to  such  uses  as  he  thinks  fit,  and  he,  having 
no  son  at  the  time,  waits  till  he  has  one  before  making  the 
appointment,  and  then  he  appoints  to  that  son,  with  remainder 
to  the  sons  of  such  son,  it  will  be  good.  The  appointment  in 
the  case  first  supposed  relates  back  to  the  state  of  things  at 
the  date  of  the  first  deed.  In  the  other  it  relates  to  the  date 
of  the  execution,  just  as  if  the  donee,  being  the  owner  in  fee, 
had  then  conveyed  to  a  living  son,  remainder  to  one  unborn, 
which  would  be  a  good  limitation. 

§  1816.  Distinction  betw^een  Po'wera  by  "Will  and  those  by 
Deed.  —  And  in  this  respect  there  is  an  important  distinction 
between  the  limitations  of  powers  by  will  and  those  by  deeds. 
Deeds  are  construed  to  take  effect  from  the  day  of  their  exe- 
cution, but  wills  from  the  death  of  the  testator.  So  that,  if 
the  limitation  first  above  mentioned  —  namely,  a  power  to  A 
to  appoint  to  his  children  —  had  been  by  will,  and  he  had  no 
son  at  the  making  of  the  will,  but  has  one  during  the  lifetime 
of  the  testator,  he  may  appoint  to  such  son,  with  remainder 
to  his  unborn  sons;  for  a  son  born  before  the  death  of  the 
testator  would  be  considered,  so  far  as  a  limitation  to  his 
children  goes,  in  the  same  light  as  one  born  at  the  date  of 
a  deed, 

§  1817.  Instrument  creating  the  Power  furnishes  the  Test, 
—  The  point  of  .inquiry,  in  a  case  under  a  special  power,  is  the 
instrument  creating,  and  not  the  instrument  executing,  the 
power. 1  The  great  case  of  Marlborough  v.  Godolphin  may 
serve  to  illustrate  the  application  of  some  of  the  foregoing 
rules.  That  was  a  devise  to  A  for  life,  remainder  to  his  first 
and  other  sons  in  tail-male  successively  ;  but  upon  the  birth  of 
each  of  such  sons,  trustees  were  to  have  power  to  revoke  the 
uses  limited  to  the  sons  respectively  in  tail,  and  to  limit  the 
premises  to  such  sons  for  life,  with  immediate  remainders  to 

1  1  Sugd.  Pow.  (ed.  1856)  471-475  ;  Lewis,  Perpet.  4S3-485  ;  Burt.  Real  Prop. 
§§  787,  792 ;  2  Flint.  Real  Prop.  547  ;  Co.  Lit.  271  b,  Butler's  note,  231 ;  2  Prest 
Abst.  165,  166. 


700       ACCUMULATIONS    AND    THE    RULE    AGAINST    PERPETUITIES. 

the  sons  respectively  of  such  sons  in  tail-male.  It  was  held  to 
be  a  void  power  as  to  such  sons  of  sons,  as  tending  to  per- 
petuate the  estate  in  the  line  of  the  testator's  family  beyond 
the  period  authorized  by  the  law.^  So  where  there  was  a 
settlement  to  A  for  life,  remainder  to  B  in  fee,  with  a  power  to 
C  and  his  heirs  to  revoke  the  uses,  it  was  held  a  void  power, 
the  period  being  indeterminate  within  which  it  might  be  ex- 
ecuted, and  might  extend  beyond  the  prescribed  period  of 
remoteness.^ 

§1818.  How  a  Power  must  be  limited. — It  is  therefore 
necessary,  in  the  creation  of  a  power,  to  assign  the  period 
within  which  it  must  be  exercised.  A  power,  however,  though 
not  in  terms  required  to  be  exercised  within  the  prescribed 
limits  of  remoteness,  may  be  good  if  given  to  a  person  living, 
without  being  extended  to  his  personal  representatives  or  heirs, 
since  it  would  constructively  be  for  his  life  only.  It  would 
also  be  good  though  it  w^as  to  be  executed  by  one  of  his  heirs, 
if  it  required  the  assent  or  direction  of  a  person  living  in  order 
to  its  validity.  But  if  it  were  given  to  the  donee  and  his 
heirs,  without  anything  to  limit  its  execution  to  a  life  or  lives 
in  being,  etc.,  it  would  be  invalid.^ 

§1819.    Of    Powers    which     are    partially  good. — Although, 

as  before  stated,  a  power,  the  direct  effect  of  whose  execution 
is  to  create  a  perpetuity,  is  void,  yet  a  particular  power  may  be 
good,  though  delegated  in  terms  general  enough  to  include 
objects  too  remote  to  admit  of  a  valid  execution  in  their  favor, 
provided  it  be  actually  executed  in  favor  of  one  who  is  within 
the  prescribed  limits  as  to  remoteness.  As,  for  instance,  a 
power  to  appoint  to  children,  grandchildren,  or  other  issue 
which  is  broad  enough  to  include  issue  in  any  degree,  and 
which  cannot  be  executed  in  favor  of  the  issue  of  an  unborn 
child,  if  executed  in  favor  of  a  child,  though  unborn,  of  a 
living  person,  will  be  good.  "  The  possible  exercise  of  the 
power  in  favor  of  such  objects  only  answers  to  the  cnances  of 

1  Marlborough  v.  Godolphin,  1  Eden,  404,  s.  c.  2  Ves.  Sen.  61,  and  reported 
also  under  name  of  Spf-ncer  i'.  Marlborough,  5  Brown,  P.  C.  592  ;  Gee  v.  Audley, 
cited  in  Routledge  v.  Dorril,  2  Ves.  Jr.  368  ;  Gilb.  Uses,  Sngd.  ed.  160,  n. 

2  Ware  v.  Polhill,  11  Ves.  283  ;  Bristow  v.  Warde,  2  Ves.  Jr.  350,  note ; 
2  Flint.  Real  Prop.  547  ;  Burt.  Real  Prop.  §  788. 

8  Burt.  Real  Prop.  §  788. 


ACCUMULATIONS   AND   THE   RULE   AGAINST   PERPETUITIES.      701 

abuse  which  attend  the  power  of  dominion  possessed  by  a  per- 
son absolutely,  but  which  liave  never  been  supposed  to  justify 
the  total  deprivation  of  that  power."  ^  J3ut  if  the  power  had 
been  to  appoint  to  the  child  of  a  person  unborn  at  the  time  of 
the  creation  of  the  power,  if  by  deed,  or  the  death  of  the  testa- 
tor, if  by  will,  and  living  at  the  date  of  the  appointment,  and 
specifically  named  in  it,  it  would  be  void,  even  though  the 
cliild  to  whose  children  the  aj)j)ointmcnt  is  to  be  made  were  to 
die  before  the  appointment  made,  as  the  limitation  must  be 
considered  in  all  respects  as  if  it  had  formed  a  part  of  the 
original  settlement?' 

§  1820.  Result  where  Power  void  for  Remoteness.  —  The 
validity  of  the  estates  raised  by  appointments  is  governed  by 
the  same  rules  which  ap[)ly  to  executory  devises.  If  an  ap- 
pointment which  is  not  bad  for  remoteness  is  followed  by  one 
which  is  bad  for  remoteness,  the  first  appointment  will  take 
effect  and  the  second  fail,  if  they  can  be  separated.^  In  those 
States  in  which  the  provisions  of  the  Wills  Act  have  been 
adopted,  1  Vict.  c.  26,  §  25,  i.  c.  that  void  devises  fall  into  the 
residuary  clause  if  an  appointment  fails  for  remoteness,  the 
property  passes  under  the  residuary  clause.  If  there  is  no 
residuary  clause,  it  goes  as  in  default  of  appointment.^  If  the 
power  of  appointment  is  bad  because  too  remote,  and  it  ap- 
pears that  the  donor  of  the  power  thought  it  was  a  good 
power,  or  intended  to  make  such  a  disposition  of  his  property, 
knowing  it  to  be  bad,  and  the  persons  who  are  entitled  to  the 
property  by  reason  of  the  invalidity  of  the  appointment  take 
also  interests  under  the  will,  they  will  be  put  to  their  election 
whether  they  will  give  up  their  claim  on  the  property  which  is 
the  subject  of  the  power,  and  keep  their  other  interests  under 
the  will,  or  whether  they  will  give  up  such  other  interests  and 
insist  upon  their  rights  to  the  appointed  property.^ 

1  Burt.  Real  Prop.  §§  792,  793 ;  Lewis,  Perpet.  487,  491  ;  1  Siigd.  Pow.  (ed. 
1856)  475. 

2  Lewis,  Perpet.  491,  492. 

8  Routledge  v.  Dorril,  2  Ves.  Jr.  357  ;  Gray,  Perpet.  §  .531. 

*  Webb  V.  Sadler,  L.  R.  14  Eq.  .533  ;  Gray,  Perpet.  §§  533,  534.  In  those 
States  where  the  provisions  of  the  Wills  Act  are  not  adopted,  the  property  would 
go  as  limited  in  default  of  ayipointment. 

6  Wollaston  t;.  King,  L.  R.  8  Etj.  165  ;  Gray,  Perpet.  §  541  et  seq. 


702      ACCUMULATIONS    AND   THE   EULE   AGAINST   PERPETUITIES. 

§1821.  Illustration.  —  In  1790,  bj  an  indenture,  a  settle- 
ment was  made,  whereby  trustees  were  to  pay  the  dividends 
of  <£10,000  to  Elizabeth,  wife  of  James,  for  life,  for  her  sepa- 
rate use.  After  her  death,  the  dividends  of  one  moiety  to 
James  for  life  ;  "  and  after  the  death  of  the  survivor  of  them, 
the  trustees  were  to  transfer  that  moiety  unto  all  or  any  one 
or  more  of  the  children  of  E.  and  J,  begotten  or  to  he  begotten, 
or  unto  all  or  any  one  or  more  of  such  children,  and  all  or  any 
of  the  issue  of  all  or  of  any  of  such  child  or  children,  at  such 
time  or  times,  in  such  shares,  etc.,  as  E.  H.  should  by  deed 
or  will  appoint,  and  in  default,  etc."  Here  it  will  be  perceived, 
the  power  given  to  E.  H.,  to  be  executed  by  deed  or  will,  was 
to  appoint  to  the  children  of  E.  and  J.  begotten,  "  or  to  be 
begotten,"  or  to  any  issue  of  all  or  any  of  such  child  or  chil- 
dren. Regarded,  therefore,  as  a  power  to  appoint  to  the  issue 
of  unbegotten  children,  it  was  clearly  too  remote  and  void  ; 
and  the  same  would  be  true  regarded  as  a  power  of  appoint- 
ment to  a  set  of  persons  collectively ,  where  some  are  within 
the  rules  as  to  perpetuity,  and  others  are  not,  so  that,  although 
some  of  their  children  might  have  been  then  born,  the  effect 
would  have  been  the  same  if  the  power  required  the  appoint- 
ment to  include  the  issue  of  unborn  children.  Now,  in  point 
of  fact,  E.  and  J.  had,  at  the  time  of  making  the  settlement, 
four  sons  and  two  daughters ;  and  the  power  to  E.  H.  con- 
tained therein  was,  as  will  be  perceived,  one  of  selection  as 
to  the  objects  of  appointment ;  and  when  E.  H.  came  to  execute 
the  power  of  appointment,  which  he  did  by  will,  he  recited 
the  indenture,  enumerated  the  six  children  of  E.  J.,  and 
"appointed  that  the  shares  of  the  £10,000,  which  each  of  the 
children  of  E.  and  J.,  begotten  or  to  be  begotten,  as  were  or 
should  be  daughters,  would  be  entitled  to  in  default  of  ap- 
pointment, should  remain  vested  in  the  trustees  upon  trust  as 
to  one  moiety  thereof,  after  the  decease  of  E.  and  J.,  to  pay 
the  dividends  to  each  of  the  said  daughter  and  daughters  as 
should  have  attained  twenty-one,  or  be  married,  for  their 
separate  use  for  life,  according  to  their  respective  shares  of 
the  capital  ;  and  that,  after  their  death,  the  trustees  should 
transfer  their  shares  of  the  capital  unto  and  equally  between 
and  among  all  their  children  respectively."    So  that  he  in  reality 


ACCUMULATIONS    AND    THE    RULE    AGAINST    PERPETUITIKS.       703 

appointed  a  certain  share  of  the  fund  to  the  daughters  wliusc 
names  had  previously  been  recited,  for  life,  with  a  remainder 
absolutely  to  their  children,  irrespective  of  their  having  tiien 
been  born  or  not.  It  was  contended  that  this  appointment  to 
their  children  was  void  for  remoteness.  But  the  V ice-Chan- 
cellor held,  that  the  power  was  good  in  its  creation,  though 
some  of  its  objects  might  have  been  beyond  the  limit  prescribed 
by  law,  as  it  was  a  power  of  selection,  and  the  donee  might 
have  selected  such  of  the  objects  only  as  were  within  the  pre- 
scribed limits.  That  though,  if  he  had  made  the  appointment 
collectively  among  a  set  of  persons,  some  of  whom  were  within 
the  rule  of  law  as  to  perpetuity,  and  some  were  not,  it  would 
have  been  void  in  toto,  instead  of  having  done  so  in  this  case, 
E.  A.  did  not  appoint  the  bulk  of  the  fund,  but  merely  directed 
how  the  share  of  each  daughter  should  go  after  her  death  ; 
and  though,  if  there  had  been  a  seventh  or  an  eighth  daughter, 
the  appointment  would  have  been  bad  as  to  their  children, 
nevertheless  the  appointment  as  to  the  share  of  one  of  the 
daughters  who  was  enumerated  and  named  by  him  would  have 
been  good.  The  partial  invalidity  of  the  appointment  with 
regard  to  the  shares  of  her  younger  sisters  could  not  have 
affected  the  validity  of  the  appointment  of  her  share.^ 


NOTE. 

STATUTE    RULES    AGAINST    PERPETUITIES. 

While  some  of  the  States  have  been  content  to  adopt  the  rules  of  the  common 
law  against  perpetuities,  others  have  regulated  the  matter  by  statute,  and  especially 
so  much  of  it  as  relates  to  limitations  of  estates  upon  the  failure  of  issue,  and  the 
like.  It  has  been  the  purpose,  in  what  follows,  to  present  an  outline  of  the  legis- 
lation upon  this  subject  in  the  several  States. 

In  Alabama,  lauds  may  be  conveyed  to  the  wife  and  childn;n,  or  children  only, 
severally,  successively,  and  jointly,  and  to  the  heirs  of  the  body  of  the  survivor,  if 
they  come  of  age,  and,  in  default  thereof,  over.  But  conveyances  to  others  than 
the  wife  and  children,  or  children  only,  cannot  extend  beyond  three  fives  in  being  at 
the  date  of  the  convej'ance,  and  ten  years  thereafter.     Code,  1896,  §  1030. 

In  Arkansas,  the  constitution  declares  that  perpetuities  shall  not  be  allowed. 
Const.  Art.  2,  §  19. 

In  California,  the  absolute  power  of  alienation  cannot  be  suspended,  by  any 


1  Griffith  V.  Pownall,  13  Sim.  393. 


704      ACCUMULATIONS   AND    THE   RULE   AGAINST   PERPETUITIES. 

limitation  or  condition  whatever,  for  a  longer  period  tlian  during  the  continuance 
of  the  lives  of  persons  in  being  at  the  creation  of  the  limitation  or  condition, 
except  that  a  contingent  remainder  in  fee  may  be  created  on  a  prior  remainder  in 
fee,  to  take  effect  in  the  event  that  the  persons  ta  whom  the  first  remainder  is 
limited  die  under  the  age  of  twenty-one  years,  or  upon  any  other  contingency  by 
wliich  the  estate  of  such  persons  may  be  determined  before  they  attain  majority. 
Civil  Code,  1899,  §§  715,  772. 

In  Indiana,  the  law  is  the  same  as  in  California.     2  R.  S.  1894,  §§  3382, 

In  Iowa,  every  disposition  of  property  is  void  which  suspends  the  absolute 
power  of  controlling  the  same  for  a  longer  i)eriod  than  during  the  lives  of  persons 
in  being,  and  for  twenty-one  years  thereafter.     Code,  1897,  §  2901. 

In  Kentucky,  the  absolute  power  of  alienation  shall  not  be  suspended  by  any 
limitation  or  condition  whatever  for  a  longer  period  than  during  the  continuance  of 
a  life  or  lives  in  being  at  the  creation  of  the  estate,  and  twenty-one  years  and  ten 
months  thereafter.     Stat.  1894,  §  2360. 

In  Michigan,  the  law  is  the  same  as  in  New  York.  Annot.  Stat.  1882,  §§  5530- 
5532. 

In  Minnesota,  the  law  is  the  same  as  in  New  York.     Stat.  1891,  §§  3976-3980. 

In  Mississippi,  while  fees-tail  are  prohibited,  and  are  declared  to  be  fees-.simple, 
one  may  make  a  conveyance  or  devise  of  lands  in  succession,  to  donees  then  in 
being,  not  exceeding  two,  and  to  the  heirs  of  the  body  of  the  remainder-man,  and, 
in  default  thereof,  to  the  right  heirs  of  the  donor  in  fee-simple.  Annot.  Code, 
1892,  §  2436. 

In  New  York,  the  absolute  power  of  alienation  shall  not  be  suspended  by  any 
limitation  or  condition  whatever  for  a  longer  ])eriod  than  during  the  continuance 
of  not  more  than  two  lives  in  being  at  the  creation  of  the  estate  (N.  Y.  Rev.  Stat., 
9th  ed.,  p.  1790,  §§  15,  16;  Levy  v.  Levy,  33  N.  Y.  97),  except  in  the  single  case 
that  a  contingent  remainder  in  fee  may  be  created  on  a  prior  remainder  in  fee,  and 
take  effect  in  the  event  that  the  persons  to  whom  the  first  remainder  is  limited 
shall  die  under  the  age  of  twenty-one  years,  or  upon  any  other  contingency  by 
which  the  estate  of  such  person  may  be  determined  before  they  attain  their  full 
age.  Successive  limitations  of  estates  for  life  are  not  valid  unless  to  persons  in 
being  at  the  creation  thereof ;  and  when  a  remainder  shall  be  limited  on  more 
than  two  successive  estates  for  life,  all  the  life-estates  subsequent  to  those  of  the 
two  persons  first  entitled  thereto  shall  be  void  ;  and  upon  the  death  of  those  per- 
sons, the  remainder  shall  take  effect  in  the  same  manner  as  if  no  other  life-estate 
had  been  created.  No  remainder  may  be  created  for  the  life  of  another  person  or 
persons  than  the  grantee  or  devisee  of  such  estate,  unless  such  remainder  be  in  fee  ; 
nor  may  a  remainder  be  created  upon  such  an  estate  in  a  term  for  j'ears,  unless  it 
be  for  the  whole  residue  of  such  term.  When  a  remainder  is  created  upon  any 
such  life-estate,  and  more  than  two  persons  are  named  as  the  persons  during  whose 
lives  the  life-estate  shall  continue,  the  remainder  takes  effect  upon  the  death  of  the 
two  persons  first  named,  in  the  same  manner  as  if  no  other  lives  had  been  intro- 
duced. A  contingent  remainder  may  not  be  created  on  a  term  for  years,  unless 
the  nature  of  the  contingency  on  which  it  is  limited  be  such  that  the  remainder 
must  vest  in  interest  during  the  continuance  of  not  more  than  two  lives  in  being 
at  the  creation  of  such  remainder,  or  upon  the  termination  thereof.  And  these 
provisions  apply  to  deeds  as  well  as  to  wills.  2  R.  S.  (9th  ed.)  p.  1790.  A  limita- 
tion to  A  for  life,  remainder  to  B  for  life,  remainder  to  C  and  D  and  the  survivor  of 
them,  is  within  the  prohibition  of  the  statute  against  limiting  an  estate  for  more 


ACCUMULATIONS    AND    THE   RULE    AGAINST   PERPETUITIES.      705 

than  two  lives.  Arnold  r.  Gilbert,  5  Barb.  190.  But  a  remainder  in  fee  after  the 
expiration  of  two  lives  in  being  at  the  testator's  death  may  be  created  in  favor  of 
one  not  in  being  at  that  time  ;  and  a  second  limitation  may  be  good  to  one  not  in 
being,  who  may  be  living  at  the  death  of  the  lirst  remainder-man,  if  such  remainder- 
man die  under  the  age  of  twenty-one.     Manice  v.  Manice,  43  N.  Y.  303,  378. 

In  Ohio,  no  estate  in  fee-simple,  fee-tail,  or  of  any  lesser  estate  in  lands  or 
tenements,  shall  be  given  or  granted  by  deed  or  will  to  any  person  or  persons  but 
such  as  are  in  being,  or  to  the  immediate  issue  or  descendants  of  such  as  are  in 
being  at  the  time  of  the  making  of  the  deed  or  will.     1  R.  S.  1896,  §  4200. 

In  Wisconsin,  the  law  is  the  same  as  in  New  York.  1  Anuot.  Stat.  1892, 
§  2046  et  seq. 

Many  of  the  States  have  adopted  the  following  statutory  provisions  relating  to 
limitations  upon  failure  of  issue :  Where  a  remainder  is  limited  to  take  effect  on 
the  death  of  any  person  without  heirs,  or  heirs  of  his  body,  or  without  issue,  the 
word  "  heirs,"  or  "issue,"  is  to  be  construed  to  mean  heirs  or  issue  living  at  the 
death  of  the  person  named  as  ancestor.  But  posthumous  children  are  entitled  to 
take  the  estate  in  the  same  manner  as  if  born  before  the  death  of  the  parent  ;  and 
any  future  estate  depending  upon  the  event  of  the  death  of  a  person  without 
heirs,  issue,  or  children,  is  defeated  by  the  birth  of  a  posthumous  child  of  such 
person  capable  of  taking  by  descent.  This  rule  has  been  adopted  in  Alabama, 
Code  1896,  §§  1023,  1024  ;  California,  Civil  Code  1899,  §  1071  ;  Georgia,  2  Code 
1895,  §  3086;  Kentucky,  Stat.  1894,  §  2344;  Michigan,  Annot.  Stat.  1882, 
§  5538  ;  Minnesota,  Stat.  1891,  §§  3971,  3978;  Mississippi,  Annot.  Code  1892, 
§  2448  ;  Missouri,  R.  S.  1899,  §  4593  ;  South  Carolina,  1  R.  S.  1893,  §  1976  ; 
Wisconsin,  1  Annot.  Stat.  §  2040.  A  similar  rule  prevails  in  Virginia,  Code  1887, 
§2422;  West  Virginia,  Code  1899,  p.  680;  and  Tennessee,  Code  1896,  §  3675, 
unless  the  intention  of  such  limitation  be  otherwise  plainly  declared  on  the  face  of 
the  deed  or  will  creating  it.  And,  so  far  as  limitations  by  devise  are  concerned, 
the  same  rule  applies  in  North  Carolina,  Code  1883,  §  1327  ;  and  New  Jersey, 
3  Gen.  Stat.  1896,  p.  3761. 


STATUTES    AGAINST   ACCUMULATIONS. 

In  New  York  there  may  be  an  accumulation  of  rents  and  profits  of  real  estate 
for  the  benefit  of  one  or  more  persons,  directed  by  any  will  or  deed  sufficient  to 
pass  real  estate,  if  such  accumulation  be  directed  to  commence  on  the  creation  of 
the  estate  out  of  which  the  rents  and  profits  are  to  arise.  It  must  be  made  for  the 
benefit  of  one  or  more  minors  then  in  being,  and  must  terminate  at  the  expiration 
of  their  minority.  If  the  direction  for  such  accumulation  be  for  a  longer  time 
than  during  the  minority  of  the  persons  intended  to  be  benefited  thereby,  it  will 
be  void  as  respects  the  time  beyond  such  minority.     2  R.  S.  (9th  ed.)  p.  1793. 

In  Michigan,  Wisconsin,  Minnesota,  and  California,  the  same  provit-ions  are 
re-enacted  in  the  sections  of  their  respective  compilations  of  laws  above  cited. 

In  Alabama,  no  trust  of  estates  for  the  purpose  of  accumulation  only  can  have 
any  force  or  effect  for  ^  longer  term  than  ten  years,  unless  when  made  for  the 
benefit  of  a  minor  in  being  at  the  date  of  the  conveyance,  or,  if  by  will,  at  the 
death  of  the  testator  ;  in  which  case  the  trust  may  extend  to  the  termination  of 
such  minority.     Code,  1896,  §  1031. 

In  Pennsylvania,  trusts  for  the  accumulation  of  rents  and  profits  cannot  be 
VOL.  II.  — 45 


706       ACCUMULATIONS    AND    THE    RULE    AGAINST    PERPETUITIES. 

created  for  a  longer  term  than  the  life  or  lives  of  any  grantor  or  grantors,  settler  or 
settlers,  or  testator,  and  the  term  of  twenty-one  years  from  the  death  of  any  such 
grantor,  settler,  or  testator  ;  that  is  to  say,  only  after  such  decease  during  the 
minority  or  respective  minorities,  with  allowance  for  the  period  of  gestation  ;  and 
all  other  trusts  for  accumulation  are  void  in  so  far  as  these  limits  are  exceeded. 
Charities  are  exempted  from  the  operation  of  the  act.  Pepper  &  Lewis'  Dig.  1896, 
col.  4055. 


END   OF   VOL.   11. 


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